

Opinion filed January 20,
2011
 
 
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-09-00337-CV
                                                    __________
 
          IN THE INTEREST
OF D.O., S.O., AND M.L.O., CHILDREN
 
                                   On
Appeal from the 35th District Court
 
                                                           Brown
County, Texas
 
                                              Trial Court
Cause No.  CV 08-05-155
 

 
                                                                  O
P I N I O N
            M.O.W.
and C.D.O. appeal the trial court’s order terminating their parental rights to
their three children, D.O., S.O., and M.L.O.[1] 
We affirm.    
Background
Facts
            D.O.
is fourteen years old; S.O. is thirteen years old; and M.L.O. is ten years old. 
In May 2008, they lived with M.O.W.  At that time, C.D.O. was incarcerated.  On
May 8, 2008, M.O.W. was arrested for possession of methamphetamine.  On May 9,
2008, the Texas Department of Family and Protective Services removed the
children from M.O.W.’s care.  On the same day, the Department filed a Petition
for Protection of a Child, for Conservatorship, and for Termination in Suit
Affecting the Parent-Child Relationship.  In its petition, the Department
sought termination of M.O.W.’s and C.D.O.’s parental rights based on a number
of statutory grounds.  The trial court entered an order naming the Department
as temporary sole managing conservator of the children. The children were
placed in foster care. The children’s maternal grandmother, R.K., intervened in
the suit. She sought to be appointed as the permanent managing conservator of
the children.
            The
case proceeded to a jury trial.  The trial court instructed the jury on three
alleged statutory grounds for termination of M.O.W.’s and C.D.O.’s parental
rights.  The jury found by clear and convincing evidence that the parental
rights of M.O.W. and C.D.O. should be terminated and that such termination was
in the best interest of the children.  The jury also found that the Department
should be appointed as managing conservator of the children.   
            In
accordance with the jury’s verdict, the trial court entered an order
terminating M.O.W.’s and C.D.O.’s parental rights to D.O., S.O., and M.L.O.  In
its order, the trial court found by clear and convincing evidence that
termination of M.O.W.’s and C.D.O.’s parental rights was in the best interest
of the children and that M.O.W. and C.D.O. had:
       [1] knowingly
placed or knowingly allowed the children to remain in conditions or
surroundings which endanger the physical or emotional well-being of the
children;
 
      [2] engaged in
conduct or knowingly placed the children with persons who engaged in conduct
which endangers the physical or emotional well-being of the children; and
 
      [3] failed to
comply with the provisions of a court order that specifically established the
actions necessary for the [parent] to obtain the return of the children who
have been in the permanent or temporary managing conservatorship of the
[Department] for not less than nine months as a result of the children’s
removal from the parent under Chapter 262 for the abuse or neglect of the
children.          
            
In its order,
the trial court appointed the Department as the children’s permanent managing
conservator.  M.O.W. and C.D.O. have filed this appeal from the trial court’s
order.  R.K. has not filed an appeal.
Issues
on Appeal
            M.O.W.
brings six issues on appeal, and C.D.O. brings four issues on appeal.  In M.O.W.’s
first two issues, she contends that the evidence is legally and factually
insufficient to support the jury’s finding that termination of her parental
rights is in the children’s best interest.  In her third and fourth issues, she
contends that the evidence is legally and factually insufficient to support the
jury’s finding that the Department should be named as the managing conservator
of the children.  In her fifth issue, she contends that the trial court erred
by admitting evidence that one of the children placed a swastika on his book.  In
her sixth issue, she argues that the trial court erred by failing to submit her
requested jury instruction to the jury.  In C.D.O.’s issues, he contends that
the evidence is legally and factually insufficient to support the jury’s finding
that termination of his parental rights is in the children’s best interest.      

Sufficiency
of the Evidence
            Due
process requires that the grounds for termination be established by clear and
convincing evidence.  In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). 
This requires a 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 (Vernon 2008); In re J.P.H., 196 S.W.3d 289, 292
(Tex. App.—Eastland 2006, no pet.).  When conducting a legal sufficiency
review, we review 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.  City of Keller v. Wilson, 168
S.W.3d 802, 817 (Tex. 2005); In re J.F.C., 96 S.W.3d at 266; In re
J.P.H., 196 S.W.3d at 292.  We must assume that the factfinder resolved
disputed facts in favor of its finding if a reasonable factfinder could do so,
and we disregard all evidence that a reasonable factfinder could have
disbelieved or found to have been incredible.  In re J.F.C., 96 S.W.3d
at 266.
            When
conducting a factual sufficiency review, we review the record as a whole,
including evidence in support of and contrary to the judgment, and give due
consideration to evidence that the trier of fact could have found to be clear
and convincing.  In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); In re
J.P.H., 196 S.W.3d at 292-93.  We then determine whether the evidence is
such that a factfinder could reasonably form a firm belief or conviction about
the truth of the State’s allegations.  In re C.H., 89 S.W.3d at 25; In
re J.P.H., 196 S.W.3d at 293.  We also consider whether any disputed
evidence is such that a reasonable factfinder could not have resolved that
evidence in favor of its finding.  In re J.F.C., 96 S.W.3d at 266; In
re J.P.H., 196 S.W.3d at 293.
            To
terminate parental rights, the Department must prove that one statutory ground
for termination has occurred and that termination is in the best interest of
the child.  In re J.L., 163 S.W.3d 79, 84 (Tex. 2005); In re A.V.,
113 S.W.3d 355, 362 (Tex. 2003).  One ground for termination is that a parent “engaged
in conduct or knowingly placed the child with persons who engaged in conduct
which endangers the physical or emotional well-being of the child.” Tex. Fam. Code Ann. § 161.001(1)(E)
(Vernon Supp. 2010).  “Endanger” means to expose to loss or injury or to
jeopardize a child’s emotional or physical health.  Tex. Dep’t of Human
Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); Phillips v. Tex. Dep’t
of Protective & Regulatory Servs., 149 S.W.3d 814, 817 (Tex. App.—Eastland
2004, no pet.); Doyle v. Tex. Dep’t of Protective & Regulatory Servs.,
16 S.W.3d 390, 394 (Tex. App.—El Paso 2000, pet. denied).  The conduct must be
more than a threat of metaphysical injury or the possible ill effects of a
less-than-ideal family environment.  However, it is not necessary that the
conduct be directed at the child or that the child actually suffers injury.  Doyle,
16 S.W.3d at 394.
            The
cause of danger to the child must be the parent’s conduct alone, as evidenced
not only by the parent’s actions but also by the parent’s omissions or failures
to act.  Doyle, 16 S.W.3d at 395; In re S.H.A., 728 S.W.2d 73, 85
(Tex. App.—Dallas 1987, writ ref’d n.r.e.).  Termination must be based on more
than a single act or omission; a voluntary, deliberate, and conscious course of
conduct by the parent is required.  In re J.W., 152 S.W.3d 200, 205
(Tex. App.—Dallas 2004, pet. denied); In re K.M.M., 993 S.W.2d 225, 228
(Tex. App.—Eastland 1999, no pet.).  Imprisonment is a factor to consider on
the issue of endangerment.  Boyd, 727 S.W.2d at 533.  However,
imprisonment by itself is not enough to constitute engaging in conduct that
endangers the emotional or physical well-being of the child.  Id. at
533-34; In re M.D.S., 1 S.W.3d 190, 199 (Tex. App.—Amarillo 1999, no
pet.).  On the other hand, if the evidence, which includes imprisonment, shows
a course of conduct that has the effect of endangering the physical or emotional
well-being of the child, a finding of endangerment is supportable.  Boyd,
727 S.W.2d at 533-34; In re M.D.S., 1 S.W.3d at 199.  Evidence that a
parent has engaged in a pattern of illegal drug use and drug-related criminal
activity supports the conclusion that the children’s surroundings endanger
their physical or emotional well-being.  In re J.T.G., 121 S.W.3d 117,
125 (Tex. App.—Fort Worth 2003, no pet.).  A parent’s abuse of the other parent
or children can support a finding of endangerment.  In re J.O.A., 283
S.W.3d 336, 346 (Tex. 2009); In re C.A.B., 289 S.W.3d 874, 886 (Tex.
App.—Houston [14th Dist.] 2009, no pet.).  Conduct that subjects a child to a
life of uncertainty and instability may endanger the physical and emotional
well-being of a child.  In re A.J.H., 205 S.W.3d 79, 81 (Tex. App.—Fort
Worth 2006, no pet.).
            The
record shows that the Department has conducted numerous investigations of M.O.W.
and C.D.O. over the years.  M.O.W. and C.D.O. were married in 1996.  Between
1996 and 2005, they were arrested a number of times.  M.O.W. testified that she
was arrested for “hot checks.”  In 2000, C.D.O. was arrested for burglary.  In
2002 or 2003, C.D.O. was placed on probation for an aggravated assault offense. 
C.D.O. testified that he started using methamphetamine in the early to middle
part of 2004.  In 2005, he was sent to the Substance Abuse Felony Treatment
Facility as a condition of probation.  He got out of the SAFTF in July 2005.  C.D.O.
started using methamphetamine again about a year later. M.O.W. testified that
she started using methamphetamine in late 2006 or 2007.  She said that, “[w]hen
[she] did drugs, [she] was an IV drug user.”  C.D.O. testified that he actively
used methamphetamine from November 2006 to June 2007.    
            M.O.W.
testified that C.D.O. physically abused her three or four times after he
returned from SAFTF.  She said that the worst instance of abuse occurred during
late 2006 when C.D.O. choked her until she passed out.  The Department
presented evidence that the children had seen their parents fight and that the
fighting had scared the children.  M.O.W. and C.D.O. separated in June 2007.  Also
in June 2007, M.O.W. admitted to the Department that she had been using drugs,
and she tested positive for methamphetamine.  At that time, M.O.W. agreed to
voluntary placement of the children with her mother. 
            M.O.W.
met Jerry W. in early 2007.  They started living together in July or August
2007.  M.O.W. testified that she knew Jerry was a convicted felon and had been
a drug dealer in the past.  C.D.O. testified that he knew Jerry was a drug
dealer.  In September 2007, the children were returned to M.O.W.’s care, and
they lived with M.O.W. and Jerry.  In December 2007, M.O.W. and C.D.O. were
divorced.
            Tony
Aaron, a captain with the Brown County Sheriff’s Office, testified that M.O.W.
had been booked into the Brown County jail twelve times since the fall of 2007. 
Captain Aaron said that he received information that M.O.W. and Jerry were involved
in trafficking drugs from Waco to the Brown County area.  In March 2008, M.O.W.,
Jerry, and three others were arrested for theft of copper wire.  On the same
occasion, the police found methamphetamine in Jerry’s pocket.  He was arrested
for possession of methamphetamine.  Jerry had been incarcerated since the date of
that arrest.  He pleaded guilty to the theft offense and received a sentence of
nine years confinement.  After Jerry’s incarceration, M.O.W. and Jerry were
married by proxy.
            In
March 2008, C.D.O. was arrested, and his community supervision on the
aggravated assault offense was later revoked.  He received a five-year sentence
on the offense.  C.D.O. said that he had been incarcerated since his March 2008
arrest and that he had not seen his children since being incarcerated.
            On
May 8, 2008, M.O.W. was driving her vehicle in Brownwood.  The police stopped
her and found 3.3 grams of methamphetamine in the vehicle.  She was charged
with a second degree felony offense of possession with intent to deliver
methamphetamine.  M.O.W. was alone in the vehicle at the time of the stop.  She
had left the children in the care of a registered sex offender and his wife.  The
Department removed the children from M.O.W.’s care and placed them with C.D.O.’s
parents.  Later, the children were placed in foster care, and they remained in
foster care through trial.
            Based
on information that Captain Aaron received about M.O.W., the police had stopped
her about a week before her May 8, 2008 arrest.  During this earlier stop, the
police had not found any drugs in her vehicle.  After the May 8, 2008 arrest, M.O.W.
became a confidential informant.  M.O.W. told Captain Aaron that she had
attempted to obtain narcotics in Waco before the earlier stop of her vehicle
but that the drugs had not been available at that time.
             In
November 2008, the police executed a search warrant at M.O.W.’s house.  The
officers seized methamphetamine during the search.  The officers also found a
recipe for manufacturing methamphetamine.  When the officers arrived at the
house, M.O.W. and Stacy Hull were on the bed in the master bedroom.  Hull had
been convicted of a number of drug offenses.  M.O.W. was arrested for
possession of methamphetamine in connection with the November 2008 incident.
            In
April 2009, M.O.W. admitted to the Department that she had used drugs and had
been a drug dealer until October 2008.  M.O.W. tested positive on numerous drug
tests in 2008.  In April 2009, M.O.W. pleaded guilty to the May 2008 offense of
possession with intent to deliver methamphetamine.  As part of the plea
agreement, the State agreed to take into consideration and dismiss the March
2008 theft charge and to take into consideration the unfiled drug offense that M.O.W.
allegedly committed in November 2008.  Pursuant to the plea agreement, M.O.W.
was placed on deferred adjudication community supervision for ten years.  M.O.W.
testified that she spent thirty days in jail as a condition of her community
supervision.
            In
August 2009, M.O.W. tested positive for methamphetamine on a drug test.  She
admitted to her probation officer that she had used methamphetamine.  M.O.W.
was arrested, and on August 19, 2009, the State filed a motion to adjudicate M.O.W.’s
guilt.  This motion was pending at the time of trial.
            The
Department presented evidence that the children were aware of M.O.W.’s drug
use.  The children talked with their counselor, Lynn Sharpin, about M.O.W.’s
use of drugs.  Sharpin testified that M.O.W.’s drug use had been a “roller
coaster ride for them” and had damaged their emotional health.  Sharpin said
that the children “broke down and started crying” after M.O.W.’s relapse in
August 2009.  S.O. told Joe M. Jeffers, a psychologist, that he had been taken
out of M.O.W.’s home because “she uses meth.”  M.L.O. told Jeffers that she had
been taken by the Department “[b]ecause my mom and dad are drug dealers.”      
             M.O.W.
lived with R.K. until the month before trial.  R.K. testified that M.O.W. moved
out to give R.K. a chance of obtaining custody of the children.  M.O.W. moved
into a house that was close to R.K.’s house.  R.K. said that she was not aware
of M.O.W.’s drug use until about six weeks before trial.  The Department had a
concern that, if the children were placed in R.K.’s care, M.O.W. would have
regular access to them.   
            The
Department presented detailed evidence that M.O.W.’s and C.D.O.’s conduct had
adversely affected the children’s emotional well-being and that the children
had thrived since being placed into foster care.  Sharpin testified that the
children liked the stability, consistency, and structure of their foster care.
            These
facts are sufficient to allow a reasonable juror to form a firm belief or
conviction (1) that M.O.W. and C.D.O. engaged in conduct that endangered the
physical or emotional well-being of D.O., S.O., and M.L.O and (2) that
termination of M.O.W.’s and C.D.O.’s parental rights is in the best interest of
the children.  As summarized above, the evidence showed that M.O.W. and C.D.O. both
engaged in a pattern of extensive drug abuse and related criminal activities
that endangered the physical or emotional well-being of the children.  Because
the evidence supports termination under Section 161.001(1)(E) of the Texas Family
Code, we need not discuss the remaining statutory findings.  We conclude that
the evidence is legally and factually sufficient to support the jury’s findings
on the termination of M.O.W.’s and C.D.O.’s parental rights and on the appointment
of the Department, and not R.K., as the managing conservator of the children.  M.O.W.’s
first four issues and C.D.O.’s issues are overruled.
Evidentiary
Issue
            In
her fifth issue, M.O.W. contends that the trial court erred in admitting testimony
from S.O.’s foster mother, Theresa Livesay, that S.O. placed a swastika on one
of his textbooks.  We review a trial court’s decision to admit or exclude
evidence for an abuse of discretion.  In re J.P.B., 180 S.W.3d 570, 575
(Tex. 2005); Allen v. Mancini, 170 S.W.3d 167, 172 (Tex. App.— Eastland 2005, pet. denied).  A trial court abuses its discretion if it acts in an
arbitrary or unreasonable manner without reference to any guiding rules or
principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
(Tex. 1985).  
            At
trial, M.O.W. argued that the swastika evidence was not relevant to the issues
to be decided by the jury and that, even if the evidence was relevant, its
probative value was outweighed by its prejudicial effect.  M.O.W. asserted that
the State sought to introduce the evidence solely for the purpose of
prejudicing the jury against her and C.D.O.  The trial court overruled M.O.W.’s
objection, and Livesay testified that S.O. had a “Nazi symbol” on one of his
books.
            Evidence
is relevant if it has “any tendency to make the existence of any fact that is
of consequence to the determination of the action more or less probable.”  Tex. R. Evid. 401.  As stated above, the
Department had to prove that at least one statutory ground for termination
occurred and that termination was in the best interest of the children.  In
re J.L., 163 S.W.3d at 84; In re A.V., 113 S.W.3d at 362. 
Therefore, any evidence that M.O.W. engaged in conduct constituting a ground
for termination or that related to the best interest of the children is relevant. 
Murray v. Tex. Dep’t of Family & Protective Servs., 294 S.W.3d 360,
368 (Tex. App.—Austin 2009, no pet.).  The fact that S.O. placed a “Nazi symbol”
on his book is relevant to determining whether M.O.W. endangered S.O.’s
physical or emotional well-being and also to evaluating S.O.’s best interest.
            Relevant
evidence may nonetheless be excluded “if its probative value is substantially
outweighed by the danger of unfair prejudice.”  Tex. R. Evid. 403.  Rule 403 favors the admission of relevant
evidence and carries a presumption that relevant evidence will be more
probative than prejudicial.  Murray, 294 S.W.3d at 368; In re K.Y.,
273 S.W.3d 703, 710 (Tex. App.—Houston [14th Dist.] 2008, no pet.).  Excluding
evidence under Rule 403 is an extraordinary remedy that must be used
sparingly.  Murray, 294 S.W.3d at 368; LSR Joint Venture No. 2 v.
Callewart, 837 S.W.2d 693, 698 (Tex. App.—Dallas 1992, writ denied).  M.O.W.
has not demonstrated, and the record does not show, that the admission of the
“Nazi symbol” evidence unfairly prejudiced her.  The trial court did not abuse
its discretion in admitting the evidence.
            Additionally,
to be entitled to reversal due to the erroneous admission of evidence, an
appellant must show that the error probably resulted in an improper judgment.  Tex. R. App. P. 44.1; State v.
Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009); Interstate
Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001).  In
conducting a harm analysis, we review the entire record and require the
complaining party to demonstrate that the judgment turns on the particular
evidence admitted.  Bay Area Healthcare Group, Ltd. v. McShane, 239
S.W.3d 231, 234 (Tex. 2007); In re C.R., 263 S.W.3d 368, 370 (Tex. App.—Dallas
2008, no pet.).  In this case, the questioning of Livesay about the “Nazi
symbol” was very brief.  Having reviewed the entire record, we find that, if
the trial court did err in allowing the evidence, the error was harmless.  M.O.W.’s
fifth issue is overruled.
Jury
Charge Issue
            In
her sixth issue, M.O.W. contends that the trial court erred by failing to
submit the following jury instruction:
Before you can find
that it is in the best interest of the child that a parent’s rights be
terminated, you must find by clear and convincing evidence that it would not be
in the best interest of the child to appoint a relative of the child or another
person as managing conservator.
 
We review a
trial court’s decision to submit or refuse a particular jury instruction under
an abuse of discretion standard.  Shupe v. Lingafelter, 192 S.W.3d 577,
579 (Tex. 2006).  When submitting a jury charge, the trial court is afforded
more discretion when submitting instructions than when submitting questions.  In
re A.R., 236 S.W.3d 460, 478 (Tex. App.—Dallas 2007, no pet.).  To be
proper, an instruction 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).  The
omission of an instruction is reversible error only if the omission probably
caused the rendition of an improper judgment.  Shupe, 192 S.W.3d at 579.
            M.O.W.
relies on Section 263.404 of the Family Code to support her contention that the
trial court should have submitted her requested instruction.  Tex. Fam. Code Ann. § 263.404 (Vernon
2008) is titled “Final Order Appointing Department as Managing Conservator Without
Terminating Parental Rights.”  Section 263.404(a) provides as follows:
       (a) The court
may render a final order appointing the department as managing conservator of
the child without terminating the rights of the parent of the child if the court
finds that:
 
       (1)
appointment of a parent as managing conservator would not be in the best
interest of the child because the appointment would significantly impair the
child’s physical health or emotional development; and
 
       (2) it would
not be in the best interest of the child to appoint a relative of the child or
another person as managing conservator.
 
M.O.W. asserts that,
by enacting Section 263.404, “[t]he Texas Legislature has determined that it is
the policy of the State of Texas to seek a relative placement of the child as a
priority to termination of the parental rights and as a priority to naming the
Department as managing conservator.”
            By
its plain language, Section 263.404 only applies when the trial court does not
order termination of parental rights.  In re J.A.J., 243 S.W.3d 611, 615
(Tex. 2007).  It does not apply when the trial court terminates parental rights.
The language in Section 263.404 does not address the issue of whether a
priority exists between seeking placement of the child with a relative and
terminating parental rights.  Nothing in Section 263.404 supports the
proposition stated by M.O.W. in her requested jury instruction.  M.O.W.’s
requested instruction did not accurately state the law.  We conclude that the
trial court did not abuse its discretion by refusing to submit M.O.W.’s
requested jury instruction.
            However,
even if the trial court erred by denying M.O.W.’s requested instruction, we
conclude that M.O.W. was not harmed.  By its answers to Question Nos. 3, 4, and
5, the jury necessarily found that it was not in the best interest of the
children that R.K. be appointed as their managing conservator.  M.O.W.’s sixth
issue is overruled.


 
This
Court’s Ruling
            The judgment of the
trial court is affirmed.
 
 
                                                                                                TERRY
McCALL
                                                                                                JUSTICE
 
January 20, 2011
Panel consists of:  Wright, C.J.,
McCall, J., and Strange, J.
 




                [1]Pursuant to Rule 9.8 of the Texas Rules of Appellate
Procedure, we use aliases to refer to the minors and the minors’ parents.  Tex. R. App. P. 9.8(b)(2).


