TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-01-00038-CV
Virginia Trevino and Juan Trevino, Appellants
v.
Texas Department of Protective and Regulatory Services, Appellee
FROM THE DISTRICT COURT OF CALDWELL COUNTY, 207TH JUDICIAL DISTRICT NO. 99-FL-151, HONORABLE GARY L. STEEL, JUDGE PRESIDING
Appellants Juan and Virginia Trevino have four children together, daughters A.T.,
C.A.T., and K.T., and son J.T. At the time of trial, A.T. was nine years’ old, C.A.T. was two and
one half, K.T. was about fourteen months, and J.T. was almost seven and one half years’ old.
Virginia has another daughter, J.L., who was thirteen at trial; Juan is not her father. In November
1998, before K.T. was born, it was discovered that C.A.T. had suffered a skull fracture. The Texas
Department of Protective and Regulatory Services (the Department) was called to investigate the
circumstances surrounding C.A.T.’s injury. After Juan and Virginia allegedly violated a Department-
imposed safety plan in April 1999, the Department removed J.L., A.T., J.T., and C.A.T. from the
Trevinos’ custody and filed a petition seeking to terminate the Trevinos’ parental rights. When K.T.
was born in August 1999, she was placed into temporary care and the Department amended its
petition to include her.1 In October 2000, the cause was presented to a jury, which found Juan’s and
1 J.L. was named in the Department’s original petition, but the termination action concerning her was severed into a separate cause and she was eventually returned to Virginia’s custody. Virginia’s parental relationships with all four children should be terminated. The district court signed
a decree of termination from which Juan and Virginia appeal.
Juan contends that section 161.001(1)(O) of the Texas Family Code, allowing for the
termination of parental rights for failure to comply with a court order, is unconstitutionally vague and
overbroad and an unlawful delegation of legislative power to the judiciary. See Tex. Fam. Code Ann.
§ 161.001(1)(O) (West Supp. 2002). Juan further contends the evidence was insufficient to support
the verdict.
Virginia contends that the evidence was legally and factually insufficient to support
termination under sections 161.001(1)(D) or (E) or to support a finding that termination was in the
children’s best interest. Id. § 161.001(1)(D), (E) (West Supp. 2002). She further contends the
district court erred in submitting a jury charge on section 161.001(1)(O) and in refusing her requests
for a mistrial.
Although we find this case extremely close, we hold that the evidence is factually and
legally sufficient to support the jury’s verdict and overrule the other issues on appeal.
SUFFICIENCY OF EVIDENCE
A trial court may terminate a parent-child relationship if it finds (1) that the parent has
engaged in any of the conduct set out as grounds for termination and (2) that termination is in the
child’s best interest; the Department must establish these elements by clear and convincing proof.
Tex. Fam. Code Ann. § 161.001 (West Supp. 2002); Leal v. Texas Dep’t of Protective & Regulatory
Servs., 25 S.W.3d 315, 319 (Tex. App.—Austin 2000, no pet.); D.O. v. Texas Dep’t of Human
Servs., 851 S.W.2d 351, 352-53 (Tex. App.—Austin 1993, no writ). Clear and convincing evidence
2 is an intermediate standard of proof falling between the standards of the preponderance of the
evidence and proof beyond a reasonable doubt. Leal, 25 S.W.3d at 319. This heightened standard
of proof does not change the standards by which an appellate court reviews the sufficiency of the
evidence. Id. at 320. We review the legal sufficiency of the evidence by considering only the
evidence and inferences tending to support the finding, disregarding all contrary evidence. Id. at 320-
21; D.O., 851 S.W.2d at 353. We will uphold a finding if it is supported by more than a scintilla of
evidence. Leal, 25 S.W.3d at 321. In reviewing factual sufficiency, we view all of the evidence in
a neutral light and set aside a judgment only if the evidence supporting it is so weak or contrary to
the weight of the evidence as to be clearly wrong and unjust. Id.; D.O., 851 S.W.2d at 353. We will
not substitute our judgment for that of the jury. Leal, 25 S.W.3d at 321.
The jury was asked whether Juan’s and Virginia’s parental rights should be terminated
under sections 161.001(1)(D), (E), or (O). Sections 161.001(1)(D) and (E) allow for termination
if it is found that the parent (1) “knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or emotional well-being of the child” or (2)
“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)(D), (E). Conduct that “endangers” a child is more than a threat of metaphysical injury
or possible ill effects of an imperfect family environment. Texas Dep’t of Human Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987); Leal, 25 S.W.3d at 325. However, the conduct need not be directed
at the child or cause the child actual injury; conduct endangers a child if it exposes the child to loss
or injury. Boyd, 727 S.W.2d at 533; Leal, 25 S.W.3d at 325. Section 161.001(1)(O) sets out as a
3 ground for termination a parent’s failure to comply with a court order governing the return of a child
removed by the Department due to abuse or neglect. Tex. Fam. Code Ann. § 161.001(1)(O).
In a termination case, it is appropriate to submit the controlling issue of whether the
relationship should be terminated to the jury in the form of a broad-form question. Texas Dep’t of
Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990); In re M.C.M., 57 S.W.3d 27, 32 (Tex.
App.—Houston [1st Dist.] 2001, no pet.). When a broad-form question is submitted, we must
uphold the jury’s findings if any ground for termination supports the findings. In re M.C.M., 57
S.W.3d at 32; In re D.L.N., 958 S.W.2d 934, 937 (Tex. App.—Waco 1997, pet. denied).
SUMMARY OF EVIDENCE
This trial lasted a week and nearly thirty witnesses testified. A summary of the
testimony is necessary to evaluate the sufficiency of the evidence supporting the jury’s findings.
At the time of trial, Juan and Virginia had been married for about ten years. Juan had
done landscaping work in the past, but he testified he had been injured and was receiving worker’s
compensation. Juan testified that he and Virginia have four children and that he has two older
daughters who live with their mother in San Antonio; additionally, there are three other children that
might be his. He has been married four times and pays child support for “at least four” children. The
Department first got involved with the Trevinos in March 1994, when Juan’s oldest daughter, D.T.,
had bruises all over her body and face. D.T. was sixteen at time of trial. She testified that she lived
with Juan from the time she was three until 1994, when she was about ten and went to live with her
mother. D.T. said when Juan and Virginia became involved, D.T. was about five or six. When she
was six or seven, Juan and Virginia sometimes left her alone to babysit the other children. D.T. said
4 Juan screamed at her and hit her with his hand, a broom, and a stick. D.T. said Virginia was present
when Juan abused D.T. and never tried to stop the abuse; in fact, D.T. testified that Virginia
sometimes laughed while Juan beat D.T. D.T. said once Juan hit her head against the floor until she
passed out. Photographs were introduced from March 1994 that showed bruises on D.T.’s face,
head, and body inflicted by Juan. D.T. said Juan only hit her and not the other children.
Juan admitted spanking D.T. when he was frustrated and upset. When asked about
bruises on D.T.’s shoulder, chin, and face, he said she got them falling off a bicycle or because he
“probably hit her by accident” or from his grabbing at her when “[s]he probably tried to escape” from
him. Juan admitted that he hit D.T. on her back with a belt and said he did not know how she got
bruises on her legs. He denied hitting her with anything other than his hand or a belt, and said he had
since learned that he should not hit his children. He also denied banging her head on the floor and
did not recall her passing out.
D.T.’s sister was fifteen years’ old at trial. She testified about one night in 1994 when
she, D.T., and Juan shared a bed. She woke up and felt Juan stroking her legs and stomach, which
felt inappropriate and made her uncomfortable.
Jaime Ybarra, a Child Protective Specialist with the Department, became involved
with the Trevinos in March 1994, when D.T.’s bruises and injuries were reported. Ybarra testified
that the Department, not the Trevinos, insisted that D.T. see a doctor after she was hurt. The
children were removed from the home due to medical neglect and physical abuse of D.T. Ybarra
testified that the Trevinos initially denied abusing D.T., but then Juan said he had pushed her, causing
her to fall off her bicycle. During therapy a couple months later, Juan admitted that he had physically
5 abused D.T. The Trevinos told Ybarra that D.T. was a problem child. Ybarra said that D.T. was the
only child abused and that she was “scapegoated” by the Trevinos, meaning she was blamed for things
such as problems in their marriage or with the other children. During some visits, Juan was “very
aggressive towards [D.T.] blaming her for having the children removed.”
Dr. Jeffrey Alvis works at Children’s Hospital in Austin. He testified that C.A.T. was
admitted to the hospital for a scalp hematoma and a skull fracture. Dr. Alvis said the Trevinos told
him that C.A.T. was in a babysitter’s care when she was injured and that she might have fallen into
a coffee table. Dr. Alvis said he was concerned by that explanation because, “[g]enerally, in cases
where skull fractures or other fractures in children are observed, without any adequate explanation,
we have to be concerned.” Dr. Alvis said the fracture could have been caused by a fall or by another
person, but without a “good honest history from the parents,” he could not tell the actual cause or
time of injury. After C.A.T. stayed overnight in the hospital and with the Department’s approval, the
hospital discharged C.A.T. into Virginia’s care. The hospital was instructed that Juan was not to be
around C.A.T. and would have to move out of the house. Dr. Alvis said no other old or healing
fractures were found on C.A.T.
Bertha Hights testified that she babysat C.A.T. and never let C.A.T. out of her sight.2
When Hights last babysat for C.A.T., she did not see C.A.T. fall or hit her head on anything, did not
hear her cry out in pain, and did not notice any injury to her head. Hights recalled that the Trevinos
called and asked if she knew how C.A.T. got hurt; Juan did most of the talking. Hights told Juan she
2 Hights testified that she last babysat C.A.T. on the Tuesday before Friday, November 6, 1998, when her injury was discovered. However, other testimony indicated Hights babysat for C.A.T. that Friday.
6 did not know anything about it. Hights testified that Juan told her to tell the Department that C.A.T.
might have hurt herself falling on a radio in Hights’ house. She also testified that Juan approached
her at church later and told her, “I was coming to let you know that the baby didn’t fall at your house.
The baby fell at my house, because I was outside working on my van. And my little boy came out
and told me that the baby had fell.”
Denise Castaneda Ramirez, former Department investigator, testified that she became
involved with the Trevinos on November 10, 1998, when Children’s Hospital reported C.A.T.’s
injury. When Ramirez spoke to Virginia away from Juan, Virginia was upset and concerned because
she did not want to lose her children again. Ramirez said Virginia “even went as far as to say that
she didn’t think the father did this, but she did not – she wasn’t there. And if she had to leave her
husband she would, because she did not want to risk losing her children.” After interviewing Juan,
Virginia, and the other children, Ramirez had no logical explanation for how C.A.T. was injured.
Ramirez said she gathered from Juan’s statement that “[t]he only person that had unsupervised access
. . . from the time that the child could have sustained the injury was Mr. Trevino.” Therefore, that
night in the hospital Ramirez had Juan and Virginia sign the first safety plan limiting his access to the
children. Juan was required to move out of the family house and was forbidden from having any
contact with the children.
Ten days after C.A.T. was admitted to Children’s Hospital, Ramirez again talked to
Juan, who offered new explanations for C.A.T.’s injury. Juan now blamed the other children for
C.A.T.’s injury. First, he said their son told Virginia that A.T. had pushed C.A.T. into a wall. Then
he said that on the day C.A.T. was injured, the son told him A.T. had pushed C.A.T. He said he had
7 not reported this earlier because he was depressed. Juan also told Ramirez that in 1994 D.T. had
bruised herself by falling off a bunk bed. On November 24, Juan and Virginia signed a new safety
plan specifying that Virginia would supervise all contact between Juan and the children.
Ramirez said Virginia was initially cooperative and very protective of the children.
As time went on, however, Ramirez became concerned as Virginia began to minimize the incident
and stated that she did not believe that Juan had hurt C.A.T.
Ramirez interviewed Hights, and according to Ramirez’s notes, Hights said that she
babysat C.A.T. on Friday, November 6, and that C.A.T. “could have bumped her head on the floor
or table, but that [Hights] did not see this happen.” Hights told Ramirez C.A.T. was not fussy on
Friday, but “maybe it was possible that the child hit something or fell and just did not cry.”
Len Snyder, a police officer in Lockhart, testified that sometime in November 1998,
Juan approached him to discuss the Department’s demands that he leave his house. Juan told Snyder
C.A.T. had suffered a head injury but Juan did not know how the injury occurred. Juan said if he did
not leave the house, the children would be removed. Snyder testified that Juan told him that Juan
“was going to take his clothes out of the residence and . . . put them in his car . . . [and] sleep in the
car to make it look like he wasn’t at the residence.”
Donald Cagle, who was eighteen at time of trial, worked with Virginia for about three
months in 1999 and lived in the Trevino home for about a month and a half when he ran away from
foster care. During that time, Cagle said Juan stayed at the house as often as Cagle did. Cagle said,
“They [Juan and Virginia] made many comments that they weren’t supposed to be there. They were
very sneaky.” Cagle testified that he only heard Virginia tell Juan to leave the house once. Virginia
8 and J.L. were teasing Juan, who suddenly turned on Virginia as if he was going to hit her. Cagle told
Juan to stop and Virginia told Juan that if he could not take a joke, he should leave. Cagle testified
that there were many times when Juan spent unsupervised time with Virginia’s older daughter, J.L.
On several occasions, the police came to the house and Juan hid in J.L.’s room or in a closet. Cagle
said Juan’s worker’s compensation claims were fraudulent, that he was not hurt and was capable of
lifting heavy objects. Cagle said he thought Juan was a con man. Cagle also testified that Juan
bragged to him about his sexual relationships with women other than Virginia, including a sixteen-
year-old neighbor. Cagle admitted that he had been angry at the Trevinos, but denied that he was
testifying against them for revenge.
Juan testified about his discovery of C.A.T.’s injury. He said when he picked her up
from Hights’ house on Friday, November 6, she was not crying and he did not notice anything wrong
with her. Juan said he became aware of C.A.T.’s injury between about 6:00 and 7:00 that night when
J.L. told him that C.A.T. “had a soft spot on her head.” Juan testified that the children were alone
inside the house for about an hour that night while he was outside working on his car with a friend,
but that he supervised them through a window and “never left their sight just about.” Juan said he
had a good view of the room where C.A.T. was in her playpen.
Juan said he did not take C.A.T. to the hospital immediately because he did not have
transportation and he did not think she had a serious injury. He waited for Virginia to get home and
they brought C.A.T. to a Luling hospital about 9:00 p.m. The hospital sent them home that night and
they returned the next day but were again sent home. On Sunday, November 9, Juan and Virginia
brought C.A.T. to Children’s Hospital in Austin, where they learned she had a skull fracture.
9 Juan admitted signing the Department safety plans requiring him to move out and have
no unsupervised contact with the children. Juan said he knew that his failure to comply could lead
to further Department involvement. Juan did not recall telling Snyder that he intended to mislead the
Department into thinking he had moved out of the house. Juan said he never took care of the children
while Virginia was at work, but admitted to being in the house when she was not home. Juan also
admitted being with J.L. in violation of a court order. Juan denied asking Hights to say C.A.T. had
fallen while in her care and denied telling her C.A.T. was not injured at her house. He said D.T.,
Hights, Cagle, and another witness had not testified truthfully.
Gwen Lopez, a Department caseworker, testified her family preservation plan with
the Trevinos consisted of therapy, parenting classes, and home visits. Lopez had more contact with
Virginia than with Juan, partly because he was not always at the home when Lopez visited. In April
1999, Lopez investigated whether Juan was there when Virginia was not present, making numerous
calls to the home. Lopez said that after someone repeatedly picked up and hung up the telephone
without speaking, she went to the house. No one answered the door, but someone peeked out the
window. Lopez waited until Virginia returned, but Virginia would not let Lopez enter the house.
After Lopez called the police, Virginia admitted Lopez. Lopez interviewed the neighbors and the
next day decided the children should be removed because she believed the safety plan excluding Juan
had been violated.
Ellen Guckian, a parent educator for the Lockhart schools, testified that initially the
Trevinos participated in her group meetings only sporadically, often arriving late. She said that later
they became more cooperative and attended more regularly. Guckian made several home visits.
10 During one visit, Virginia was on the phone during most of the time and appeared uninterested in
talking with Guckian. Juan was attentive to the children. Guckian said she did not have a great deal
of experience observing the Trevinos, but she thought Virginia was not very engaged with the
children. Guckian said the Trevinos never accepted that they had any responsibility for the
Department’s involvement with the family and often complained about the Department.
Mary Van Diggele, a court appointed special advocate and guardian ad litem for the
children, testified that she had been involved with the case since late June 1999. Van Diggele
witnessed several meetings between the children and the parents after the children were in foster care.
She said initially the children were “clingy” with Juan and Virginia, but that they no longer seemed
traumatized when the visits were over. J.L. acted like a mother to the younger children and Virginia
“was rather disassociated from interaction with her children. She more or less sat back and watched.
And [J.L.] assumed, to a certain extent, the mothering role.” Van Diggele has observed the children
in their foster home. She said they were outgoing and interacting normally and did not seem
withdrawn or sad. The children played outside and had friends in the neighborhood. C.A.T. is
fearless and “intent on discovering her world at top speed.” She is normal in all aspects except for
speech, and is undergoing speech therapy. Van Diggele said the two youngest children view their
foster family as their real parents. Van Diggele said the Trevinos consistently blame A.T. for
C.A.T.’s injury. Based on her observations of the children and their interactions with each other, their
foster parents, and Juan and Virginia, Van Diggele recommended that Juan and Virginia’s rights be
terminated.
11 Pastor Benjamin Smith testified that Juan and Virginia had been members of First
Baptist Church in Lockhart for almost two years. On occasion, Virginia asked Smith to watch J.L.
Smith said Virginia deals with J.L. in a typical mother/daughter way and he believes Virginia is
capable of caring for and protecting her children. He did, however, say there was room for
improvement in Virginia’s discipline.
Taylor Skaar, a counselor with a women’s shelter, testified about her work with
Virginia since October 1999. Skaar said one of Virginia’s major issues was her anger toward the
Department and a former therapist. Skaar watched Virginia interact with a Department caseworker
and said the caseworker was unprofessional. Skaar believed Virginia’s anger toward the Department
was justified and said Virginia had made considerable progress in dealing with that anger. Skaar said
she had never seen anyone more committed to complying with Department requirements than
Virginia. As far as Skaar knew, Virginia attended all classes or events required of her. Skaar
believed Virginia was capable of protecting her children, was “psychologically sound enough to
provide good mothering,” and had “expressed deep caring for her children.” Skaar did not believe
Virginia was co-dependent on Juan.
Stanley Harlan provided family counseling to the Trevinos at the Department’s request
from February through October 1999. Harlan testified that Virginia was depressed; he believed she
had a long-term depressive disorder stemming from low self-esteem and a sense of worthlessness.
He said the Trevino family was very engaged in the counseling, and Virginia was cooperative even
though she disliked being required to undergo therapy. Harlan said initially Virginia seemed to have
some ambivalence about Juan’s involvement in C.A.T.’s injury. She did not think he had hurt the
12 child, but was open to the possibility that he might have. Harlan said Virginia was very angry and
dissatisfied with the Department’s handling of the family’s case. Harlan thought Virginia would be
minimally functional and able to care for the children. At the time Harlan stopped seeing Virginia,
she was still depressed but had made progress in being less reliant on Juan. Virginia told Harlan that
she missed Juan but indicated that she was complying with the Department’s requirements. Harlan
believed Juan and Virginia were co-dependent on each other. In April 1999, Harlan called the
Trevino home to speak to Virginia. Juan answered and said he was watching the children while
Virginia made a trip to work. Harlan then reported a possible safety plan violation to the Department,
as required by his contract.
Minnie Mae Hudspeth babysat the Trevino children for about three months at the end
of 1998. She said Juan never picked up the children and the children were always in good condition.
Hudspeth said the children were glad to see Virginia when she picked them up and she was
affectionate with them. Cindy Gray Tidwell educated Virginia about nutrition, child care, and stress
management for about six months and testified that Virginia was cooperative and seemed to
assimilate information from the training. Maria Revas babysat for C.A.T. for about three months up
until April 1999 and testified that C.A.T. always appeared healthy, well fed, cared-for, and happy to
see Virginia. Revas also testified that she had observed the entire family together before November
1998, and that they were happy.
Virginia’s oldest daughter, J.L., testified that although Juan was not her biological
father, she called him “dad.” J.L. denied that she had been alone in the house with Juan on the day
before the Department removed the children. She said her grandmother had been there. When asked
13 if she knew whether Juan was also there, she answered, “No, ma’am.” J.L. said Juan never came to
the home when Virginia was not there. She testified that she was not afraid of Juan, he had never
hurt her, and she had never seen him hurt any of the other children.
Virginia testified that she loved her children. She said they were a normal but not
perfect family, and she never hurt the children or saw Juan hurt them. Virginia said when she arrived
home from a week-long training session on November 6, Juan immediately asked her to look at
C.A.T.’s head. She felt a soft spot and asked her sister to drive them to the Luling hospital. The
hospital sent them home and the next day Virginia went to work. When she got home that evening,
C.A.T. seemed fine. She worked all the next day, leaving instructions with Juan that if C.A.T.
worsened he should call Virginia immediately. When she got home about 10:00 p.m., she decided
to bring C.A.T. back to the Luling hospital to ask for a CAT scan. The hospital did the scan but
“didn’t know what to do with” C.A.T., so the Trevinos went home again. On Monday, Virginia again
had to work, and when she got home she asked her sister to drive them to Children’s Hospital in
Austin. Virginia said Juan took C.A.T. to see two other doctors during this time frame.
Virginia denied allowing Juan to be with the children when she was not present and
denied leaving them with him the day before they were removed. She said that day she worked until
about 2:00 p.m., picked up C.A.T. from the babysitter, and went home to make dinner and wait for
the other children to get home from school; her mother was visiting at the time. After dinner,
Virginia left her mother with the children and left to run an errand. Juan, who still had a key to the
house, was not there when she left but came while she was gone. When Virginia returned, Gwen
Lopez was waiting outside. Virginia said she refused to allow Lopez into the home because her
14 attorney had instructed her not to speak to the Department. When Lopez called the police and
insisted on entering the home, Virginia allowed her inside. The next day, the Department removed
the children.
Virginia testified that she had complied with all of the Department’s requirements,
including attending parenting classes, Alcoholics Anonymous meetings, and anger management
therapy. Virginia testified that she tried to reschedule two classes she missed due to conflicts with
a doctor’s appointment and a job interview, but her caseworker refused. Virginia said she never saw
Juan hit D.T. with a stick, although she did see him hit her leg with a fly swatter. Virginia said she
had not filed for divorce or stopped seeing Juan because she loves him; she did not believe Juan had
injured C.A.T. However, she agreed that if only Juan’s parental rights were terminated, she would
move away where Juan could not find her. Virginia testified that A.T. told a doctor that C.A.T. was
hurt when A.T. and J.T. were playing, but a Department caseworker told A.T. to stop lying.
There was additional conflicting testimony about whether the Trevinos allowed J.L.
to socialize very late at night with a much older girl and whether Juan provided alcohol and
pornography to Donald Cagle when Cagle was a minor.
DISCUSSION
Juan argues that the Department did not prove how C.A.T.’s injury occurred and that
such a showing was necessary because of the dissimilarity between C.A.T.’s and D.T.’s injuries. He
argues that the “[D.T.] factor” must be removed from consideration and the case evaluated as a
“straightforward accidental injury to a child case with no aggravating facts.” Virginia argues that the
record contains no evidence that she or the children’s environment endangered the children and that
15 “no one actually testified that they would be concerned for the children’s safety” if they were returned
to Virginia’s care. Virginia also argues that the “relevant time frame” was before the children were
removed and because K.T. was removed immediately after she was born, there was no evidence to
support the termination of Virginia’s rights as to this youngest child.
Both Virginia and Juan downplay the evidence supporting termination. They ignore
the conflicting evidence as to whether Juan was frequently alone with the children in violation of the
safety plan, and whether Juan told other people that he intended to deceive the Department. They
also overlook testimony from experienced Department personnel who expressed concern for the
children’s well-being if left in the Trevinos’ care, and Cagle’s testimony that Juan violated the safety
order with Virginia’s knowledge and involvement, fraudulently obtained worker’s compensation, and
had a sexual relationship with a sixteen-year-old neighbor.
D.T. testified that Juan once banged her head on the floor until she passed out. C.A.T.
also suffered head injury, the cause of which has not been satisfactorily explained. Over time, Juan
offered changing explanations of how the injury might have occurred and there was evidence that he
attempted to convince C.A.T.’s babysitter to take the blame for the injury. Department personnel
testified that Juan had been slow to accept responsibility for D.T.’s earlier injuries. The children’s
guardian ad litem testified that the children were flourishing in foster care and recommended that the
Trevinos’ rights be terminated. There was conflicting testimony as to whether the Trevinos followed
through with education to improve their parenting skills.
This is a close case. While there is evidence that the Trevinos are competent or “good
enough” parents, there is also sufficient evidence to the contrary. The evidence and inferences that
16 may be drawn from that evidence are sufficient to show that Juan endangered the children by his own
conduct. Likewise, the evidence is sufficient to show Virginia should have been aware that it was
unsafe to place her children in Juan’s care or to allow him to be in the home with them. That Virginia
continued to be involved with Juan throughout these proceedings and refused to accept the likelihood
that Juan seriously injured C.A.T. indicates that she might in the future fail to take steps to protect
the children. Virginia’s argument that there was no evidence to support termination of her
relationship with K.T. fails because it is not necessary for the injuring conduct to be directed at K.T.
to terminate the parent-child relationship. See Boyd, 727 S.W.2d at 533; Leal, 25 S.W.3d at 325.
Considering the conflicting evidence and leaving matters of credibility and demeanor
to the jury’s determination, as we must, we cannot hold that the jury’s findings that the Trevinos’
parental rights should be terminated are so against the great weight and preponderance of the
evidence as to be clearly unjust. See Leal, 25 S.W.3d at 325. Likewise, taking into account factors
such as the children’s needs, present and future dangers posed by the home environment, the
Trevinos’ parenting abilities and programs available to them, and their acts or omissions directed at
the children, we cannot hold the finding that termination is in the children’s best interests to be
unsupported by the evidence. See D.O., 851 S.W.2d at 355-56. We hold there is clear and
convincing evidence sufficient to support termination under sections 161.001(1)(D) or (E) and to
support a finding that such termination is in the children’s best interests. See Leal, 25 S.W.3d at 325.
We overrule Virginia’s second and third points of error and Juan’s third issue.
17 Having found sufficient evidence to support termination under sections 161.001(1)(D)
or (E), we need not address the Trevinos’ attacks on section 161.001(1)(O). See In re M.C.M., 57
S.W.3d at 32.
MISTRIAL
Virginia also contends the district court erred in refusing her requests for a mistrial
due to questions asked about Juan’s friend Oscar Doria, Doria’s conviction for indecency with a
child, and the possible adoption of the children. Initially, we note that although Virginia contends that
the Department “violated the limine regarding Oscar Doria on more than one occasion,” and “went
beyond the Court’s ruling on the Motion in Limine in asking whether the children were adoptable,”
a review of the motion shows that neither subject was barred by the district court’s order in limine.
Nowhere does the motion refer to Doria by name, and none of the limits set forth in the motion apply
to his conviction for indecency with a child. Further, the district court denied Virginia’s request to
include in the motion in limine “[a]ny testimony of the proposed adoption of the children.” We will
review whether the district court should have granted Virginia’s motions for a mistrial apart from
motion in limine considerations.
Juan testified that Doria was a friend of his. The Department asked whether Doria was
in prison, and Juan said he did not know. Virginia objected that the question was irrelevant, and the
district court overruled her objection. Doria’s name came up again, and the Department asked:
A: Did you know that Oscar Doria was convicted of indecency —
Juan: Objection, Your Honor.
18 Q: — with a child?
The Court: Sustained. I’ll ask the jury to disregard that last comment.
Finally, the Department asked Denise Ramirez who else was at Children’s Hospital when she
interviewed Virginia. Ramirez answered, “Well, Mrs. Virginia Trevino arrived with Oscar Doria and
his wife.” Virginia moved for a mistrial, arguing that the Department kept bringing up Doria in an
attempt to taint the jury. The district court denied the motion, but admonished the Department not
to mention Doria again: “I’m just informing counsel that if it keeps coming up after we’ve got the
stink in the jury, I’m going to be considering a mistrial.”
As for testimony regarding the children’s adoption, Stephanie Hofferek, a Department
supervisor, was asked about the Department’s plans for the children should the Trevinos’ rights be
terminated. Hofferek stated that the Department intended for the children to be adopted. When
asked, she testified that the children were adoptable; Virginia objected immediately after Hofferek’s
answer and the district court sustained the objection. When the Department asked Hofferek whether
the Department would attempt to keep the children together, Virginia objected and the district court
sustained her objection. Virginia moved for a mistrial, saying
The Court’s ruling on the Motion in Limine was that they could ask what the plans were. The answer was supposed to be adoption and move on. Not go into the details. The [Department] has crossed and violated that order forcing me to object in front of the jury and also forcing — allowing the jury to hear that their opinion was that these children are adoptable. Now, we’ve opened this whole can of worms and these children may not be adoptable.
The district court overruled Virginia’s request for a mistrial.
19 A trial court’s decision on a motion for mistrial is reviewed for an abuse of discretion.
Van Allen v. Blackledge, 35 S.W.3d 61, 63 (Tex. App.—Houston [14th Dist.] 2000, pet. denied);
Pitman v. Lightfoot, 937 S.W.2d 496, 537 (Tex. App.—San Antonio 1996, writ denied). A trial
court abuses its discretion when it acts unreasonably or arbitrarily, without reference to any guiding
principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991).
Virginia complains of three questions asked during a week-long trial with more than
twenty-five witnesses. The district court sustained Virginia’s objections and instructed the jury not
to consider the question regarding Doria’s conviction for indecency with a child. A trial court has
the discretion to so admonish the jury in lieu of declaring a mistrial, and here the admonishment cured
any possible error in the asking of the question. See Weidner v. Sanchez, 14 S.W.3d 353, 365 (Tex.
App.—Houston [14th Dist.] 2000, no pet.). Based on this record, we cannot hold that the district
court abused its discretion in refusing to grant Virginia a mistrial. We overrule Virginia’s fourth point
of error and affirm the decree of termination.
Bea Ann Smith, Justice
Before Chief Justice Aboussie, Justices B. A. Smith and Puryear
Affirmed
Filed: January 10, 2002
20 Do Not Publish