in the Interest of D.M.L., a Child

Opinion

MEMORANDUM OPINION No. 04-12-00297-CV

IN THE INTEREST OF D.M.L., a Child

From the 216th Judicial District Court, Gillespie County, Texas Trial Court No. 12625 Honorable Stephen B. Ables, Judge Presiding

Opinion by: Catherine Stone, Chief Justice

Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Rebecca Simmons, Justice

Delivered and Filed: October 31, 2012

AFFIRMED

This is an appeal of an order terminating Jason L.’s parental rights to D.M.L. Jason

challenges the sufficiency of the evidence to support the termination of his rights and the

appointment of the Texas Department of Family and Protective Services as D.M.L.’s managing

conservator. Jason also contends the trial court erred in admitting hearsay testimony. We

overrule Jason’s issues and affirm the trial court’s order.

SUFFICIENCY OF THE EVIDENCE

In his first point of error, Jason challenges the sufficiency of the evidence to support the

jury’s finding of a predicate ground for terminating his parental rights. In his second point of 04-12-00297-CV

error, Jason contends the evidence is insufficient to support the jury’s finding that termination of

Jason’s parental rights was in D.M.L.’s best interest.

A. Standard of Review

To terminate parental rights pursuant to section 161.001 of the Family Code, the

Department has the burden to prove: (1) one of the predicate grounds in subsection 161.001(1);

and (2) that termination is in the best interest of the child. See TEX. FAM. CODE ANN.

§ 161.001(1), (2) (West Supp. 2012); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The

applicable burden of proof is the clear and convincing standard. TEX. FAM. CODE ANN.

§ 161.206(a) (West 2006); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). “‘Clear and

convincing evidence’ means 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 (West 2008).

Legal sufficiency review of the evidence to support a termination finding requires a court

to “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.”

In re J.F.C., 96 S.W.3d at 266. In reviewing the factual sufficiency of the evidence to support a

termination finding, a court “must give due consideration to evidence that the factfinder could

reasonably have found to be clear and convincing.” Id. “If, in light of the entire record, the

disputed evidence that a reasonable factfinder could not have credited in favor of the finding is

so significant that a factfinder could not reasonably have formed a firm belief or conviction, then

the evidence is factually insufficient.” Id.

In reviewing the sufficiency of the evidence to support the best interest finding, we apply

the factors set out in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Those factors

-2- 04-12-00297-CV

include: (1) the desire of the child; (2) the present and future emotional and physical needs of the

child; (3) the present and future emotional and physical danger to the child; (4) the parental

abilities of the individuals seeking custody; (5) the plans held by the individual seeking custody

for the child; (6) the stability of the home of the parent; (7) the acts or omissions of the parent

which may indicate that the existing parent-child relationship is not a proper one; and (8) any

excuse for the acts or omissions of the parent. Id. The foregoing factors are not exhaustive, and

“[t]he absence of evidence about some of [the factors] would not preclude a factfinder from

reasonably forming a strong conviction or belief that termination is in the child’s best interest.”

In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).

B. Predicate Grounds for Termination

With regard to the necessary predicate ground for terminating Jason’s parent rights, the

jury found that Jason: (1) knowingly placed or knowingly allowed D.M.L. to remain in

conditions or surroundings which endanger her physical or emotion well-being; (2) engaged in

conduct or knowingly placed D.M.L. with persons who engaged in conduct which endangers

D.M.L.’s physical or emotional well-being; and (3) failed to comply with the provisions of a

court order that specifically established the actions necessary for Jason to obtain D.M.L.’s return.

TEX. FAM. CODE ANN. § 161.001(1) (D), (E) & (O) (West Supp. 2012). “Only one predicate

finding under section 161.001(1) is necessary to support a judgment of termination when there is

also a finding that termination is in the child’s best interest.” In re A.V., 113 S.W.3d at 362.

1. Jason’s Conduct - § 161.001(1)(E)

“The inquiry under subsection 161.001(1)(E) relates to whether the endangerment of the

child is the direct result of the parent’s conduct.” In re E.A.G., 373 S.W.3d 129, 142 (Tex.

App.—San Antonio 2012, pet. denied). “Termination under subsection 161.001(1)(E) must be

-3- 04-12-00297-CV

based on not just a single act or omission, but a voluntary, deliberate, and conscious course of

conduct by the parent.” Id. “Endangerment can be exhibited by both actions and failures to act.”

In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.).

Jason divorced D.M.L.’s mother when D.M.L. was approximately one and one-half years

old. Jason admitted that both he and D.M.L.’s mother drank excessively and used drugs during

their marriage. After divorcing D.M.L.’s mother, Jason began a relationship with Christy who

he eventually married. Christy has four children from prior relationships who also resided with

Jason, Christy, and D.M.L.

D.M.L., who was twelve at the time of trial, was diagnosed with reactive attachment

order. This disorder is caused by a child not being properly nurtured or parented during the first

five years of the child’s life. The needs of children with this disorder go unmet by their parents,

causing a lack of attachment to caregivers. In addition, D.M.L. suffers from post-traumatic

stress causing her to revisit or relive past trauma. D.M.L.’s counselor, Shauna Wickham,

described the type of trauma that D.M.L. relives based on Jason’s conduct.

D.M.L. informed Wickham that Jason would tell her she was worthless, ugly, and

retarded. Jason told D.M.L. that he wished she was not his child, and Jason blamed D.M.L. for

all of the family’s problems, including his marital problems. On one occasion, Jason held a gun

to D.M.L.’s head and told her he wished she had died earlier. Jason repeatedly beat D.M.L. with

belts and paddles, including one instance in which he caused her leg to severely bleed resulting

in a scar on D.M.L.’s leg which was visible in pictures shown to the jury. On a different

occasion, Jason stomped on D.M.L.’s stomach after Christy fought with Jason and left the house

taking only her children. D.M.L. also described an incident when Jason threw a frying pan at

-4- 04-12-00297-CV

her. During a therapy session with Blake, one of Christy’s children, Blake told Wickham he had

observed Jason grab D.M.L. by her hair and throw her against a wall.

Another one of Christy’s children, Casey, testified at trial. Casey was seven when they

began living with Jason and D.M.L. and was eighteen at the time of the trial. Casey recalled that

Jason would throw things at D.M.L. and call her worthless, stupid, and retarded. Casey observed

bruises on D.M.L. from times when Jason spanked her. Casey recalled Jason requiring D.M.L.

to run in a field in the hot sun for punishment to the point that D.M.L. had to be hospitalized.

Casey also observed occasions when food was withheld from D.M.L. and when she was forced

to eat out of a trash can.

Both Jason and Christy denied any abuse occurred with the exception of one instance

where Christy repeatedly hit D.M.L. with a flyswatter causing bruising. This incident led to one

of numerous referrals and investigations by Child Protective Services. Jason and Christy both

blamed the children’s aunt, Christy’s sister, and the father of one of Christy’s children as having

coached the children to fabricate lies. Although Jason initially testified that he admitted to a

therapist that he cursed at the children to intimidate them, he later denied doing so. Jason quit

attending therapy because he did not believe he had anything on which he needed to work or

change.

Having reviewed the record as a whole, including the evidence summarized above, we

hold that the evidence is legally and factually sufficient for the jury to form a firm belief or

conviction that Jason engaged in conduct which endangered D.M.L.’s physical or emotional

well-being. See TEX. FAM. CODE ANN. § 161.001(1)(E) (West Supp. 2012).

-5- 04-12-00297-CV

2. Other Predicate Grounds

Because we have concluded that the evidence is sufficient to support termination under

subsection 161.001(1)(E), we do not address the sufficiency of the evidence to support the other

predicate grounds. See In re A.V., 113 S.W.3d at 362 (only one predicate finding necessary to

support termination); TEX. R. APP. P. 47.1 (opinions should address only those issues necessary

to final disposition).

C. D.M.L.’s Best Interest

Applying the evidence presented in the case to the factors set forth in Holley v. Adams,

we note that D.M.L. never wants to see Jason again. D.M.L. repeatedly expressed this desire to

Wickham during therapy and even sent Jason a letter informing him that she never wanted to see

him again. D.M.L. does, however, want a “forever life” with her current foster family. D.M.L.

wants to be adopted by her foster family and to change her last name. Although D.M.L.’s

emotional and physical needs were being neglected while residing with Jason, D.M.L. is thriving

with the foster family who wish to adopt her. Wickham testified that D.M.L. feels loved and has

regained self-esteem. The evidence demonstrated that D.M.L. suffered emotional and physical

danger while residing with Jason not only at his own hands, but also at the hands of every

resident of the household, including abuse by Christy and D.M.L.’s step-siblings. Despite all of

the evidence presented regarding the abuse that D.M.L. suffered, Jason and Christy continue to

deny that any abuse occurred. Unlike the environment she experienced living with Jason and

Christy, D.M.L. feels protected and loved by her foster family. Having reviewed the record as a

whole, the evidence is sufficient for the jury to form a firm belief or conviction that terminating

Jason’s first and second points of error are overruled.

-6- 04-12-00297-CV

DEPARTMENT AS MANAGING CONSERVATOR

In his third, fourth, and fifth points of error, Jason contends that the trial court abused its

discretion in appointing the Department as D.M.L.’s managing conservator. First, Jason

contends that the trial court should have appointed him as managing conservator. Having upheld

the termination of Jason’s parental rights, we reject this contention. Jason next contends that his

parents should have been appointed as managing conservator. At trial, Jason testified that he

listed his parents as an alternative choice for placement, and Jason asserts in his brief that

“[f]riends and other relatives expand the pool from which to choose.” The record contains no

evidence, however, that Jason’s parents approached the Department or requested the opportunity

to testify at trial in an effort to be appointed as D.M.L.’s managing conservator. Although a

petition in intervention was filed by D.M.L.’s maternal grandparents, the petition was voluntarily

withdrawn prior to trial. Because Jason’s third, fourth, and fifth points of error are unsupported

by the record, they are overruled.

ADMISSIBILITY OF EVIDENCE

In his final issue, Jason contends the trial court abused its discretion in allowing D.M.L.’s

ad litem to question him regarding the findings by Child Protective Services relating to its

investigation of the incident where Christy repeatedly struck D.M.L. with a flyswatter. Jason

asserts the findings were inadmissible hearsay.

To preserve error with regard to the admission of evidence, a party must object each time

the inadmissible evidence is offered or obtain a running objection. Bay Area Healthcare Group,

Ltd. v. McShane, 239 S.W.3d 231, 235 (Tex. 2007). Any error in the admission of evidence is

harmless where the same evidence comes in elsewhere without objection. Richardson v. Green,

677 S.W.2d 497, 501 (Tex. 1984).

-7- 04-12-00297-CV

The record in this case is replete with testimony regarding the flyswatter incident to

which no objection was made. Accordingly, Jason failed to preserve his complaint for our

review, and error, if any, by the trial court in overruling the objection referenced by Jason in his

brief was cured by the admission of the same evidence elsewhere without objection. Jason’s

sixth issue is overruled.

CONCLUSION

The trial court’s order terminating Jason’s parental rights is affirmed.

Catherine Stone, Chief Justice

-8-