in the Interest of A.C., a Child

Opinion issued December 13, 2012

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-12-00223-CV

———————————

IN THE INTEREST OF A.C., A CHILD

On Appeal from the 313th Judicial District Court

Harris County, Texas

Trial Court Case No. 2010-05720J

OPINION

This is an appeal from the termination of the parental rights of a mother with

respect to her daughter, A.C. See TEX. FAM. CODE ANN. § 161.001 (West Supp.

2012). On appeal, the mother contends that the evidence was legally and factually

insufficient to support the termination of her parental rights and the naming of the

Department of Family and Protective Services as sole managing conservator, rather

than the child’s paternal grandmother. She also challenges two of the trial court’s

evidentiary rulings: the exclusion of evidence of alleged bias and prejudice of the

Department and the ad litem attorneys in the case, and the admission of the

testimony of an expert witness.

Because the evidence is sufficient to support the trial court’s judgment, and

the mother has failed to preserve error with respect to the evidentiary issues, we

affirm.

Background

When the mother was four months pregnant with A.C., she tested positive

for cocaine use during a doctor’s visit and first drew the attention of the

Department. Two months later, the school that her three older children attended

contacted the Department. The children appeared “dirty” and the Department

became concerned about possible malnutrition, abuse, and neglect in the home.

After unsuccessfully attempting to provide home-based services to the mother and

the older children, the Department decided to remove the three children. At that

time, the mother was approximately six months pregnant, and she again tested

positive for drug use. After the removal of the three older children, the

Department enrolled both of A.C.’s biological parents in a program to receive

family support services so they could resolve certain identified issues and be

reunited with the children.

2

When A.C. was born a few months later, both mother and child tested

negative for drugs. But the Department began to investigate the mother again

because she had tested positive for drugs during the pregnancy. The Department

ultimately removed A.C., placing her with her paternal grandmother at the

mother’s request. Approximately three months later, after the guardian ad litem

and attorney ad litem raised concerns about the lack of a complete home study on

the placement, the child was moved to a foster home. The foster parents bonded

with A.C., and by the time of the termination hearing they had formed a plan to

adopt her.

After A.C.’s removal, the mother and the father tested positive for cocaine.

While the child was still placed at her grandmother’s home, the mother again

tested positive for cocaine use. This positive test result came after she completed a

family services substance abuse program. A few months later, the mother was sent

to jail for violating her probation, which she had received for an earlier bank fraud

charge, because she had tested positive for cocaine.

In March 2011, almost a year after A.C.’s birth, the mother’s parental rights

were terminated with respect to her three older children. That termination was

based on the findings that the mother had knowingly placed the children in

surroundings endangering their well-being under Texas Family Code

section 161.001(1)(D), engaged in conduct endangering their well-being under

3

section 161.001(1)(E), and failed to comply with a court order establishing the

actions she needed to undertake to achieve the children’s return under

section 161.001(1)(O). The Department notified the mother that it was seeking

termination of her parental rights to A.C. A few months later, she again tested

positive for cocaine abuse.

The jury made several findings based on clear and convincing evidence

which supported termination of the parent-child relationship between the mother

and A.C. The court adopted these findings and entered a final decree of

termination. The mother then brought this timely appeal.

Analysis

I. Sufficiency of the evidence

In her first and second issues, the mother challenges the legal sufficiency of

the evidence supporting the judgment terminating her parental rights to the child

and awarding sole managing conservatorship to the Department rather than to the

child’s paternal grandmother. In her brief, the mother also challenges the factual

sufficiency of the evidence supporting the termination decision, but she did not

timely file a motion for new trial. Because a motion for new trial is a prerequisite

to a complaint on appeal that the evidence is factually insufficient to support a jury

finding, her factual sufficiency complaint is waived. TEX. R. CIV. P. 324(b)(2).

4

Protection of the best interests of the child is the primary focus of the

termination proceeding in the trial court and our appellate review. See In re A.V.,

113 S.W.3d 355, 361 (Tex. 2003). A parent’s right to the care, custody, and

control of her child is a precious liberty interest protected under the Constitution.

See, e.g., Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000);

Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982).

Accordingly, termination proceedings are strictly scrutinized on appeal. See

Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Clear and convincing evidence

must support the decision to terminate parental rights. In re J.F.C., 96 S.W.3d

256, 263–64 (Tex. 2002); see also Santosky, 455 U.S. at 747–48, 102 S. Ct. at

1391–92.

Evidence is legally sufficient if it is “such that a factfinder could reasonably

form a firm belief or conviction about the truth of the matter on which the State

bears the burden of proof.” In re J.F.C., 96 S.W.3d at 265–66; see TEX. FAM.

CODE ANN. § 101.007 (West 2008). We review “the evidence in the light most

favorable to the judgment,” meaning that we “must assume that the factfinder

resolved disputed facts in favor of its finding if a reasonable factfinder could do

so.” Id. at 266. “If, after conducting its legal sufficiency review of the record

evidence, a court determines that no reasonable factfinder could form a firm belief

5

or conviction that the matter that must be proven is true, then that court must

conclude that the evidence is legally insufficient.” Id.

A. Termination of parental rights

In proceedings to terminate the parent-child relationship, the Department

must establish that one or more of the acts or omissions listed in Family Code

section 161.001(1) occurred and that termination is in the best interest of the child.

TEX. FAM. CODE ANN. § 161.001. Both elements must be established, and

termination may not be based solely on the best interest of the child as determined

by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533

(Tex. 1987). “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.

Here the Department sought termination of the mother’s parental rights on

grounds of endangerment, see TEX. FAM. CODE ANN. § 161.001(1)(E), having had

her parental rights to her other children terminated, see id. § 161.001(1)(M),

constructive abandonment, see id. § 161.001(1)(N), failure to comply with a court

order, see id. § 161.001(1)(O), and testing positive for substance abuse after

completion of a substance abuse treatment program, see id. § 161.001(1)(P). In the

termination order based on the jury verdict, the trial court expressly found that

these five statutory provisions were met, termination was in the best interest of the

6

child, appointment of a parent or relative of the child as managing conservator

would not be in the child’s best interest, and appointment of the Department as sole

managing conservator was in the child’s best interest.

1. Predicate grounds for termination (§ 161.001(1))

The evidence the Department presented was sufficient to support the finding

that one or more of predicate acts listed in section 161.001(1) had occurred. See In

re A.V., 113 S.W.3d at 362. The Department introduced evidence supporting

several predicate acts.

a. Prior termination decree (§ 161.001(1)(M))

To establish the ground for termination described in section 161.001(1)(M),

the Department offered into evidence the decree terminating the mother’s parent-

child relationship with her other children. Paragraph (M) applies when the parent

“had his or her parent-child relationship terminated with respect to another child

based on a finding that the parent’s conduct was in violation of Paragraph (D) or

(E).” TEX. FAM. CODE ANN. § 161.001(1)(M). The prior termination decree in this

case contained a finding that the mother had endangered her children both by

placing them in unsafe conditions under section 161.001(1)(D) and by engaging in

endangering conduct under section 161.001(1)(E).

The mother challenges whether this decree could be used to prove a prior

termination because the decree, and therefore the termination, was on appeal and

7

thus not necessarily final. The prior decree stated that “this case is not final until

[the trial court’s] plenary jurisdiction from this final judgment expires, and all

appeals, if any, have concluded.” While acknowledging that the “case” was not

final and accordingly maintaining the appointment of the attorneys ad litem and the

guardian ad litem, the decree reiterated that “this judgment is final.” But finality,

in the sense of a complete exhaustion or waiver of all possible appellate remedies,

is not expressly required by the text of the statute. See TEX. FAM. CODE ANN.

§ 161.001(1)(M).

The mother’s appeal of the prior termination decree did not suspend the

effect of that decree. TEX. FAM. CODE ANN. § 109.002(c) (West Supp. 2012) (“An

appeal from a final order, with or without a supersedeas bond, does not suspend the

order unless suspension is ordered by the court rendering the order.”); see TEX. R.

APP. P. 24.2(a)(4) (“When the judgment involves the conservatorship or custody of

a minor . . . enforcement of the judgment will not be suspended”). The mother did

not establish and does not argue that the prior decree at issue in this case was ever

suspended. In other words, the prior termination decree effectively terminated her

parent-child relationship at and as of the time of the trial, despite the fact that the

order was still subject to review on appeal. Cf. Street v. Honorable Second Court

of Appeals, 756 S.W.2d 299, 302 (Tex. 1988) (acknowledging that “a trial court

8

judgment is final for the purposes of issue preclusion or collateral estoppel despite

the pendency of an appeal”).

The trial court admitted into evidence a prior decree that ordered termination

of the mother’s rights for reasons of endangerment under subsections (D) and (E).

Just as a trial court’s judgment is effective for purposes of precluding relitigation

between the same parties on the same issues, the judgment is also effective for the

purpose of presenting evidence to the factfinder of a prior termination. We hold

that the statute requires no greater finality than this, and accordingly there was

legally sufficient evidence to show that the mother had her rights terminated as to

other children for purposes of section 161.001(1)(M).

b. Endangerment of the child (§ 161.001(1)(E))

Additionally, the Department presented evidence that the mother’s conduct

during pregnancy and after the child’s birth met the requirements of several other

predicate acts under the Family Code. The mother admitted that she had used

cocaine during her pregnancy with the child, and that she did so even though she

knew that she could have harmed the child by taking drugs. She admitted she

tested positive for cocaine again after the child was removed from her care. She

admitted using cocaine after completing a court-ordered substance abuse treatment

program. The mother also admitted to failing to complete her court-ordered

parenting classes because she had tested positive for drug use while on deferred

9

adjudication and jailed for 85 days. After she was released from jail, she again

tested positive for drug use. The mother admitted that her continued drug

problems put the child at risk and that she had engaged in conduct harmful to the

child.

The evidence of the mother’s continuing use of illegal drugs and admission

that such use put the child at risk supports the conclusion that the mother had

engaged in conduct that endangered the physical and emotional well-being of the

child. See TEX. FAM. CODE ANN. § 161.001(1)(E). As the Supreme Court of Texas

has noted, a parent’s use of narcotics and its effect on his or her ability to parent

may qualify as an endangering course of conduct. In re J.O.A., 283 S.W.3d 336,

345 (Tex. 2009). The mother’s continued illegal drug use, combined with the fact

that such use violated both her court-ordered reunification plan and the terms of

her deferred adjudication from an earlier conviction, established clear and

convincing proof of deliberate conduct that endangered the well-being of her child.

See Robinson v. Texas Dep’t of Family & Protective Servs., 89 S.W.3d 679, 686–

87 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

Having considered all of this evidence, we conclude the evidence is

sufficient to form a firm belief in the minds of the jurors that the mother committed

at least one of the predicate acts justifying termination as listed in the Family Code.

10

2. Best interest findings (§ 161.001(2))

In determining whether termination of the mother’s parental rights was in

the child’s best interest, we consider numerous factors, including (1) the child’s

desires, (2) the current and future physical and emotional needs of the child, (3) the

current and future physical danger to the child, (4) the parental abilities of the

person seeking custody, (5) whether programs are available to assist the person

seeking custody in promoting the best interests of the child, (6) plans for the child

by the person seeking custody, (7) stability of the home, (8) acts or omissions of

the parent that may indicate that the parent-child relationship is not proper, and

(9) any excuse for acts or omissions of the parent. Holley v. Adams, 544 S.W.2d

367, 371–72 (Tex. 1976). There is no requirement that the Department prove all

these factors as a condition precedent to parental termination, and the absence of

evidence about some factors does not preclude a factfinder from reasonably

forming a strong conviction that termination is in the child’s best interest. See In

re C.H., 89 S.W.3d at 27.

The Holley factors are not necessarily the only considerations relevant to

determining the best interest of the child. “[T]he prompt and permanent placement

of the child in a safe environment is presumed to be in the child’s best interest.”

TEX. FAM. CODE ANN. § 263.307(a) (West 2008). In determining whether a parent

is willing and able to provide a safe environment, we consider several factors,

11

including (1) the child’s and vulnerabilities; (2) developmental evaluations of the

child’s parents, other family members, and others who have access to the child’s

home; (3) whether there is a history of substance abuse by the child’s family or

others who have access to the child’s home; (4) willingness and ability of the

child’s family to seek, accept, and complete counseling services and cooperate

with agency supervision; (5) the willingness and ability of the child’s family to

effect positive changes within a reasonable period of time; and (6) whether the

child’s family demonstrates adequate parenting skills. Id. § 263.307(b). Evidence

establishing one of the predicate acts under section 161.001(1) also may be

relevant to determining the best interest of the child. See In re C.H., 89 S.W.3d at

27-28.

There is strong evidence in this case that the mother regularly used illegal

drugs both during her pregnancy with the child and after undergoing a treatment

program. See Robinson, 89 S.W.3d at 688–89 (considering a similar pattern of

drug use as favoring termination as being in the best interest of children). This

pattern of illegal drug use suggests the mother was not willing and able to provide

the child with a safe environment—a primary consideration in determining the

child’s best interest. See TEX. FAM. CODE ANN. § 263.307. The mother admitted

she had used drugs during her pregnancy even though she knew it might harm the

child. She tested positive for drugs the month after the child was removed. And

12

she used drugs even though that violated the conditions of her probation, resulting

in her going to jail, away from the child. See id. § 263.307(b)(8) (considering

whether the child’s family has a history of substance abuse). This evidence weighs

against the mother under the third and eighth Holley factors focusing on physical

danger to the child and any actions indicating an improper parent-child

relationship.

The fifth Holley factor considering the availability of programs for the

mother also weighs against the mother. She completed parts of the Department’s

family services plan, but she continued to use drugs and never completed the entire

program. See id. § 263.307(b)(10) (considering willingness and ability of family to

complete counseling services); Robinson, 89 S.W.3d at 688–89 (termination in

children’s best interest when mother continued to use drugs and left ameliorative

family support programs incomplete). The mother admitted at trial that after she

got out of jail for violating her deferred adjudication provisions, she did not resume

participating in either family service programs or a twelve-step program,

explaining that she had not wanted to ask for time off from work in the months

immediately following her release. This excuse may justify failing to resume the

family services for a short time under the ninth Holley factor, but it does not justify

failing to participate in any counseling program at all after leaving jail.

13

Beyond drug use, the evidence also establishes that the mother experienced

difficulties in providing the child with a safe environment, disfavoring the mother

under the seventh Holley factor, which considers the stability of the home. See In

re C.H., 89 S.W.3d at 28 (weighing evidence that a parent had a criminal history

involving drugs, no concrete plans to provide support, and remaining apart from

children in favor of finding that termination was in children’s best interest). The

mother took the child to Florida immediately after her birth, making it difficult for

the Department to locate her and provide services. See TEX. FAM. CODE ANN.

§ 263.307(b)(10) (considering willingness to cooperate with and facilitate agency’s

close supervision). Both the mother and the father were homeless or living out of a

motel until about a month before the termination trial. The mother continued to

stay with the father, who she admitted had a drinking problem and a history of

criminal convictions. See id. § 263.307(b)(8) (considering “whether there is a

history of substance abuse by the child’s family or others who have access to the

child’s home”).

In contrast, the evidence presented about the foster parents seeking custody

showed them as stable and caring, favoring them under the second and seventh

Holley factors that consider the needs of the child and the stability of the home.

The foster parents provided continuous care to the child from her placement with

them until the time of trial. The home environment with the foster parents was

14

shown to be a nurturing one. The Department observed the child was healthy and

had current vaccinations and dental check-ups. The child had called the foster

parents’ parents “maw-maw” and “paw-paw” and played with the foster family’s

young relatives, showing that the foster parents were attempting to meet the

emotional needs of the child.

The Department also presented evidence favoring the foster parents under

the sixth Holley factor considering the custodians’ plans for the child. The foster

parents intended to adopt A.C. and to keep her in the family. The foster father

stated that he would want the child to know her paternal grandmother because he

believes family should stay in touch.

We conclude that the evidence presented was sufficiently clear and

convincing to support a fixed belief that termination of the mother’s rights would

be in the best interests of the child. The Department presented evidence that the

mother’s conduct had placed the child in physical danger, undermined her

parenting skills and the availability of family services, and indicated an improper

parent-child relationship under the third, fourth, fifth, and eighth Holley factors.

No factor weighed in the mother’s favor. The young age of the child rendered

consideration of the child’s desires neutral. On the other hand, the evidence

presented about the foster parents showed that they were meeting the child’s needs,

15

had positive plans for the child, and provided a stable home under the second,

sixth, and seventh Holley factors.

Accordingly, we overrule the mother’s challenges to the sufficiency of the

evidence to support termination.

B. Conservatorship of the child

The mother also challenges the sufficiency of the evidence to support the

finding that appointment of the Department as managing conservator of A.C. is in

her best interest. The mother acknowledged at trial that she did not request to be

appointed the child’s managing conservator, but she argues that the child’s paternal

grandmother should have been appointed. The mother essentially argues that the

appointment of “blood kin” conservators serves the child’s best interest more than

unrelated conservators.

We review the trial court’s conservatorship decision under a less stringent

standard of review than the standard for termination. In re J.A.J., 243 S.W.3d 611,

616 (Tex. 2007). Conservatorship determinations are subject to review only for

abuse of discretion, and they may be reversed only if the decision is arbitrary and

unreasonable. Id.; In re K.R.P., 80 S.W.3d 669, 674 (Tex. App.—Houston [1st

Dist.] 2002, pet. denied). “Jury findings underlying a conservatorship appointment

are subject to ordinary legal and factual sufficiency review.” J.A.J., 243 S.W.3d at

616 n.5.

16

Family Code section 161.207 directs the court to appoint a suitable,

competent adult, the Department, a licensed-child placing agency, or an authorized

agency as managing conservator of the child. TEX. FAM. CODE ANN. § 161.207

(West 2008). In contrast to the presumption of appointment given to a child’s

parents, see id. § 153.131, there is no statutory presumption that a grandparent

should be preferred over other non-parents. See TEX. FAM. CODE ANN. § 161.207;

In re J.R.P., 55 S.W.3d 147, 152 (Tex. App.—Corpus Christi 2001, pet. denied); In

re H.G.H., No. 14-06-00137-CV, 2007 WL 174371, at *9-10 (Tex. App.—

Houston [14th Dist.] Jan. 25, 2007, no pet.) (memo op.).

The primary consideration in determining conservatorship is always the best

interest of the child. TEX. FAM. CODE ANN. § 153.002. In determining that

appointment of a party as managing conservator is in the child’s best interest, the

court must consider both the section 263.307 factors and the Holley factors

described above. Dep’t of Family & Protective Servs. v. Alternatives in Motion,

210 S.W.2d 794, 804 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).

Applying those factors, there was sufficient evidence supporting the jury’s finding

that appointment of the Department is in the best interest of the child.

Although the child has noted respiratory problems, the paternal grandmother

and her partner smoke in their house and the smell of smoke was found on the

child’s clothing. See TEX. FAM. CODE ANN. § 263.307(b)(1) (noting the child’s age

17

and physical vulnerabilities should be considered in determining a safe

environment for the child). The harm that smoking may cause to a child with a

respiratory problem weighs against the grandmother under the second and third

Holley factors, which require consideration of the needs of the child and physical

danger to the child. Additionally, there was evidence presented that the

grandmother would allow the mother and the child’s father to stay and visit,

despite their history of alcohol and drug abuse and multiple criminal charges

against the father. See id. § 263.307(b)(8). The grandmother also could have been

determined to have not been properly protective of the child as she did not seem to

understand the full extent of the mother’s and father’s drug use. This evidence

suggests an improper parent-child relationship under the eighth Holley factor.

Compared to the evidence that the foster parents had provided a stable and

healthy environment for the child with access to a supportive extended family, see

id. § 263.307(b)(13) (considering whether there is a “social support system

consisting of an extended family and friends” for the child), there is sufficient

evidence supporting the jury’s determination to name the Department as sole

managing conservator. The Department presented evidence under the Holley

factors that conservatorship by the grandmother would not be in the child’s best

interest. We therefore overrule the mother’s second issue.

18

II. Evidentiary issues

A. Exclusion of evidence of systemic bias and prejudice

In her third issue, the mother alleges that the trial court erred by excluding

“relevant evidence of bias and corruption . . . presented for consideration by the

jury” when the court denied her “the right to make a timely proffer.” Rule 103(b)

of the Rules of Evidence provides that the “offering party shall, as soon as

practicable, but before the court’s charge is read to the jury, be allowed to make, in

the absence of the jury, its offer of proof.” TEX. R. EVID. 103(b). The trial court

expressly told the mother, before the charge was read, to make her offer of proof

“whenever” she wished. The mother failed to timely act on this invitation, and

instead she offered her proof after the charge was read to the jury. Therefore, we

have no basis to review her third issue and we hold that the mother has waived any

error in regard to it. See Lewis v. United Parcel Serv., Inc., 175 S.W.3d 811, 815

(Tex. App.—Houston [1st Dist.] 2004, pet. denied).

B. Admission of expert witness testimony

In her fourth and final issue, the mother challenges the testimony of a former

Department employee who had testified in the mother’s previous termination

proceeding, Lisa McCartney, as a qualified expert witness. The mother has not

preserved this complaint through a timely objection, which would have required a

timely and specific objection followed by an adverse ruling. TEX. R. APP. P. 33.1;

19

see Austin v. Weems, 337 S.W.3d 415, 423–24 (Tex. App.—Houston [1st Dist.]

2011, no pet.). If a party later permits the same or similar evidence to be

introduced without objection, generally the error in the admission of testimony is

harmless and is waived. Volkswagen of America, Inc. v. Ramirez, 159 S.W.3d 897,

907 (Tex. 2004). But if the party obtains a running objection, the party need not

object every time the evidence is offered. Id.

Here the record shows that the mother failed to preserve error. She failed to

obtain a running objection or to object when McCartney took the stand. After voir

dire of the jury panel, the trial court had the following dialogue with the mother’s

attorney regarding McCartney’s testimony:

MOTHER’S ATTORNEY: Because it is a new trial, I think I need to

reurge my objection to Ms. McCartney being an expert. So, I don’t

know if you want to carry the Daubert hearing over [from the previous

termination trial]. How do you want to do it?

...

THE COURT: I don’t want Ms. McCartney to take the stand and

there be a bunch of objections about qualifications and expertise. And

I am willing to attach the previous records. If that’s agreeable to the

parties, I will attach it.

MOTHER’S ATTORNEY: Yes, sir. That’s fine.

THE COURT: The Court is finding Ms. McCartney is an expert, and

that she is going to be allowed to remain in the courtroom as the

expert, and to testify as an expert, but I will attach the previous

testimony and your objection and all of the cross and everything to the

record in this new trial.

20

MOTHER’S ATTORNEY: And, Judge, just for the record, I believe

to preserve the error for appeal that when it comes time for her to-

THE COURT: You can make another objection all over.

MOTHER’S ATTORNEY: I have to make it, once, to her being an

expert.

The end of the discussion indicates that counsel for the mother had understood that

she had not obtained a running objection. The mother’s attorney positively

acknowledged that she needed to make another objection to McCartney’s

testimony to preserve error. Then when McCartney took the stand, the mother

failed to object to the admissibility of her testimony as inadmissible or her

qualification as an expert. Thus, the mother waived her objection to McCartney’s

testimony as an expert witness. See TEX. R. APP. P. 33.1.

Conclusion

In sum, we conclude that the Department presented sufficient evidence to

support the jury’s findings and the verdict terminating the parent-child relationship

and awarding sole conservatorship to the Department. The mother has waived her

other complaints. Accordingly, we affirm the judgment of the trial court.

Michael Massengale

Justice

Panel consists of Justices Keyes, Massengale, and Brown.

21