in the Interest of A.G. v. M.G. v. D.G. v. and E.G. v. Children ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-18-00065-CV
IN THE INTEREST OF A.G.-V., M.G.-V., D.G.-V., and E.G.-V., Children
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-PA-02802
Honorable Barbara Hanson Nellermoe, Judge Presiding 1
Opinion by: Marialyn Barnard, Justice
Sitting: Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: August 22, 2018
AFFIRMED
This is a parental termination case in which appellants, mother (“Mother”) and father
(Father), separately appeal the trial court’s order terminating their parental rights to their four
children, A.G.-V., M.G.-V., D.G.-V., and E.G.-V. On appeal, Mother and Father challenge the
sufficiency of the evidence, arguing the evidence is legally and factually insufficient to support the
jury’s finding that termination was in their children’s best interests. Father further challenges the
jury charge, arguing the charge did not require the jury to identify the grounds for termination or
make a best interest finding. We affirm the trial court’s order.
1
The Honorable Michael E. Mery is the presiding judge of the 37th Judicial District Court, Bexar County, Texas. The
Honorable Barbara Hanson Nellermoe, retired, was sitting by assignment and signed the order of termination that is
the subject of this appeal.
04-18-00065-CV
BACKGROUND
This case involves the following four children, A.G.-V., M.G.-V., D.G.-V., and E.G.-V.,
each of whom were adopted by Mother and Father. M.G.-V. was privately adopted by Mother and
Father after Mother learned her cousin’s friend was pregnant and did not want to keep the baby.
At the time Mother and Father adopted M.G.-V., Mother had one biological daughter, D., who the
couple was raising. Shortly thereafter, A.G.-V., D.G.-V., and E.G.-V. were placed with Mother
and Father as foster children by the Texas Department of Family and Protective Services (“the
Department”). Mother and Father ultimately adopted them and raised them along with Mother’s
biological daughter D. and M.G.-V. In 2015, three more children were placed with Mother and
Father as foster children. That same year, the Department received a referral alleging Mother was
physically abusing the children and Father was sexually abusing the children. The Department
opened an investigation, but it was ultimately closed after the allegations were “ruled out.”
Approximately a year later, in March 2016, the Department received another referral,
alleging A.G.-V. was being physically and sexually abused. At the time the referral was made,
A.G.-V. was fifteen-years-old. The referral alleged A.G.-V. made an outcry that Father was
sexually touching her and Mother was hitting her and making her do planks 2 as punishment.
During the investigation, A.G.-V. provided the Department with an audio recording wherein
Father and Mother could be heard yelling and cursing at the adoptive and foster children in the
household for over an hour. According to A.G.-V., she was forced to plank for ten-minutes during
the audio. A.G.-V. can be heard pleading and crying in the audio recording as the other children
play in the background. By May 2016, Mother and Father voluntarily came to an agreement with
the Department to place A.G.-V. with Mother’s cousin, E.R. The record reflects that by this time,
2
A review of the record reflects Mother believed a “plank” to be an exercise that involves putting your elbows on the
floor in a push-up position and maintaining that position for a specific time frame.
-2-
04-18-00065-CV
D., Mother’s biological child, was an adult and no longer living in the home, and the three foster
children who were staying with the family had also been removed from the home because one of
them — a five-year-old — began to act out sexually. The adopted children — M.G.-V., D.G.-V.,
and E.G.-V. — remained with Mother and Father.
In August 2016, the Department received another referral regarding concerns about the
remaining children in the household. The referral alleged they were being physically abused by
Mother and “groomed” for future sexual abuse by Father. The Department investigated the
allegations, and on December 14, 2016, it filed a petition to terminate Mother and Father’s parental
rights to all four children, A.G.-V., M.G.-V., D.G.-V., and E.G.-V. A hearing for temporary orders
was set for January 20, 2017. During the interim, Mother was not allowed to physically discipline
the children and Father was not allowed in the home. On January 20, 2017, the hearing for
temporary orders was held, and the trial court signed an order naming the Department as the
children’s temporary sole managing conservator, setting a full adversary hearing, and requiring
Mother and Father to comply with any service plan prepared by the Department. Thereafter, the
remaining children, M.G.-V., D.G.-V., and E.G.-V., were removed from the home and placed with
ChildSafe. A.G.-V. remained with Mother’s cousin, E.R.
After the removal, the Department created a service plan for Mother and Father. The
service plans required Mother and Father to each have a psychological evaluation and complete
counseling classes, anger management classes, as well as parenting classes. Each of the service
plans also identified the following goals Mother and Father needed to achieve before the children
could be returned: (1) demonstrate a willingness and ability to protect the children; (2) demonstrate
an ability to express anger that does not hurt the children; (3) take responsibility for past actions;
and (4) demonstrate an ability to change a pattern of abusive behavior. Over the next couple of
-3-
04-18-00065-CV
months, Father and Mother attended their required classes; however, according to the Department,
neither attained the required goals.
Thereafter, the Department moved forward on its petition seeking termination. Mother and
Father requested a jury trial, which was conducted over a five-day period in January 2018. At
trial, the Department sought to terminate Mother and Father’s parental rights to all four children
based on the ongoing physical and sexual abuse occurring in the household. Based on the abuse,
the Department alleged Mother and Father violated numerous provisions of the Texas Family Code
(“the Code”). Specifically, the Department alleged Mother and Father: (1) knowingly placed or
knowingly allowed the children to remain in conditions or surroundings that endangered their
physical or emotional well-being; (2) engaged in conduct or knowingly placed the children with
persons who engaged in conduct that endangered their physical or emotional well-being; and (3)
failed to comply with the provisions of a court order that specifically established the actions
necessary for her to obtain the return of their children. See TEX. FAM. CODE ANN.
§ 161.001(b)(1)(D), (E), (O) (West Supp. 2017). The Department also alleged termination would
be in the children’s best interests. See id. § 161.001(b)(2). During the trial, the jury heard
testimony from several witnesses, including therapists who provided counseling services for
Mother, Father, and the children; the Department investigator and caseworker who were assigned
to the case; school officials and teachers who knew the children before they were removed from
the home; D., Mother’s biological daughter; as well as Mother and Father.
After considering the evidence, the jury found Mother and Father violated the provisions
of the Code as alleged by the Department and that termination would be in the best interests of the
children. In accordance with the jury’s verdict, the trial court rendered an order terminating
Mother and Father’s parental rights to A.G.-V., M.G.-V., D.G.-V., and E.G-V. Mother and Father
separately appealed to this court.
-4-
04-18-00065-CV
ANALYSIS
As indicated above, Mother and Father separately appeal the trial court’s order terminating
their parental rights. Both Mother and Father challenge the sufficiency of the evidence in support
of the jury’s finding that termination was in the best interests of their children. See id.
§ 161.001(b)(2). Father also raises a complaint with regard to the jury charge, arguing the charge
did not require the jury to identify the grounds for termination or make a best interest finding. We
first turn to whether the evidence was sufficient to support the jury’s finding that termination of
Mother’s and Father’s parental rights was in the children’s best interests.
Best Interests
Standard of Review
A trial court may terminate a parent’s rights to a child only if it finds by clear and
convincing evidence that the parent committed an act prohibited by section 161.001(b)(1) of the
Code and termination is in the best interest of the child. Id. § 161.001(b). “Clear and convincing
evidence” is defined as “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.” Id. § 101.007. Courts require
this heightened standard of review because termination of a parent’s rights to a child results in
permanent and severe changes for both the parent and child, thus, implicating due process
concerns. In re A.B., 437 S.W.3d 498, 502 (Tex. 2015). When reviewing the legal and factual
sufficiency of the evidence, we apply the well-established standards of review. See TEX. FAM.
CODE ANN. §§ 101.007, 161.206(a); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (legal
sufficiency); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (factual sufficiency). In sum, an
appellate court must determine whether the evidence is such that the trier of fact could reasonably
form a firm belief or conviction that termination was in the child’s best interest. In re J.F.C., 96
S.W.3d 256, 263 (Tex. 2002).
-5-
04-18-00065-CV
In conducting a sufficiency review, we may not weigh a witness’s credibility because it
depends on appearance and demeanor, and these are within the domain of the trier of fact. In re
J.P.B., 180 S.W.3d at 573. Even when such issues are found in the appellate record, we must defer
to the fact finder’s reasonable resolutions. Id.
Applicable Law
In a best interest analysis, we apply the non-exhaustive Holley factors. See Holley v.
Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). In analyzing the evidence within the Holley
framework, we note that evidence of each Holley factor is not required before a court may find
that termination is in a child’s best interest. In re C.H., 89 S.W.3d 17, 27 (Tex. 2012). In other
words, the absence of evidence as to some of the Holley factors does not preclude a fact finder
from reasonably forming a strong conviction or belief that termination is in a child’s best interest.
Id. Moreover, in conducting our review of a trial court’s best interest determination, we focus on
whether termination is in the best interest of the child — not the best interest of the parent. In re
D.M., 452 S.W.3d 462, 468–69 (Tex. App.—San Antonio 2014, no pet.).
In addition to the Holley factors, we recognize there is a strong presumption that keeping
a child with a parent is in the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).
However, promptly and permanently placing a child in a safe environment is also presumed to be
in the child’s best interest. TEX. FAM. CODE ANN. § 263.307(a). Thus, to determine whether a
child’s parent is willing and able to provide the child with a safe environment, we also consider
the factors set forth in section 263.307(b) of the Code. Id.
Additionally, evidence that proves one or more statutory grounds for termination may be
probative to prove termination is in the child’s best interest. In re C.H., 89 S.W.3d at 28 (holding
same evidence may be probative of both section 161.001(1) grounds and best interest, but such
evidence does not relieve State of burden to prove best interest). In conducting a best interest
-6-
04-18-00065-CV
analysis, a court may consider in addition to direct evidence, circumstantial evidence, subjective
factors, and the totality of the evidence. In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio
2013, pet. denied). Finally, a trier of fact may measure a parent’s future conduct by her past
conduct in determining whether termination of parental rights is in the child’s best interest. Id.
The Evidence
As indicated above, the jury heard testimony from numerous witnesses. Rebecca Aldrich,
an investigations supervisor with the Department, testified the Department became involved with
the family in March of 2016 based on allegations that Father was sexually abusing A.G.-V. and
both Father and Mother were physically abusing all of the children. Aldrich explained that after
the Department investigated the abuse allegations, the allegations were ultimately ruled out due to
insufficient evidence. Aldrich stated that in May 2016, the Department received another referral,
again alleging Father was sexually abusing A.G.-V., who was fifteen-years-old at the time.
Aldrich testified the May 2016 referral also alleged both Father and Mother were using excessive
physical force to discipline the children. As a result, the Department began another investigation.
During this second investigation, the Department received an audio recording from A.G.-V. The
audio recording was admitted into evidence and captures Mother and Father yelling at the children
for over an hour. Aldrich testified the Department attempted to work with the family by discussing
proper punishment techniques, but Mother and Father denied the allegations of physically abusing
the children and refused to listen to the audio recording. Aldrich further testified Mother and
Father refused to create a safety plan regarding Father’s access to the children. According to
Aldrich, due to the lack of cooperation the Department received from Mother and Father, the
investigation took “longer than normal” despite the fact the Department tried to work with the
family to keep them together. As a result, the Department decided to pursue termination
proceedings and remove M.G.-V., D.G.-V., and E.G-V. from the home. Aldrich confirmed that
-7-
04-18-00065-CV
prior to legal intervention, Mother and Father voluntarily agreed to allow A.G.-V. to stay with
E.R., Mother’s cousin; however, Aldrich added that Mother “reluctantly” signed the agreement.
Department caseworker, Norma Hayes, testified she became involved with the family after
the first caseworker stopped working for the Department. Hayes testified she began working on
the case after the service plans were created. According to Hayes, Mother and Father attended
their required counseling sessions and classes — specifically, anger management and parenting —
however, she did not believe they showed any progress toward their goals. She testified that
because she believed they were not meeting their goals, she changed their counselor from Jesse
Jessup to Victoria Caylor, who also believed the parents had not shown signs of progress. Hayes
further testified that although Mother and Father attended all their visitation sessions, she did not
believe it was appropriate that Mother and Father would bring the children gifts at every session.
According to Hayes, it became unclear whether the children were happy to see Mother and Father
or to receive a gift. Throughout Hayes’s testimony, Hayes expressed her concern that Mother and
Father refused to admit any wrongdoing or demonstrate a willingness to change; but rather, Mother
and Father kept “putting the blame on [A.G.-V.] for other people’s actions, and that’s not right.
That is dangerous actually.”
With regard to the therapists who worked with the children, the jury heard testimony from
Alejandro Lopez, a therapist with ChildSafe who provided services for M.G.-V. According to
Lopez, M.G.-V. had anger outbursts, and he is teaching her how to manage and process her anger
appropriately. Lopez further testified M.G.-V. expressed concern about returning home, stating
she did not want things that happened before to happen again. Lopez testified M.G.-V. explained
there was a lot of spanking and yelling at home. The jury also heard testimony from Holly Ulman,
a clinical therapist with ChildSafe who was working with D.G.-V. and E.G.-V. According to
Ulman, D.G.-V. had not spoken directly about any memories while living with Mother and Father,
-8-
04-18-00065-CV
but added that her questionnaire showed potential for “under-response,” suggesting D.G.-V. may
be avoiding or denying any traumatic experience. Ulman further testified that E.G.-V., on the
other hand, showed several symptoms of abuse, such as anger, post-traumatic stress arousal, and
dissociation, indicating she has been through some sort of trauma. Ulman stated E.G.-V.
acknowledged some “scary things” happened at home, but she did not recall memories in detail.
With regard to A.G.-V., the jury heard testimony from Carla Cheatman, who treated A.G.-V. for
six sessions between July 2017 and October 2017. Cheatman diagnosed A.G.-V. with post-
traumatic stress disorder and stated A.G.-V. showed symptoms of anxiety, low self-esteem, and
negative thinking patterns. According to Cheatman, A.G.-V.’s symptoms were related to the
emotional abuse A.G.-V. endured. Cheatman testified A.G.-V. said her Father would watch her
as she showered. Rosemary Coates also treated all the children and met with them during family
counseling sessions. Coates testified A.G.-V. suffered from post-traumatic stress disorder.
According to Coates, during family counseling sessions, A.G.-V. and E.G.-V. seemed depressed.
Specifically, A.G.-V. appeared to be fearful about returning home, while E.G-.V. expressed fear
about the Department’s involvement with their lives. According to Coates, A.G.-V. did not share
many details about the alleged sexual abuse during the family counseling sessions, but when she
was alone, she “was very graphic with the descriptions of what she and her dad experienced.”
The jury also heard testimony from school officials and staff members who knew the
children prior to their removal from the home. Martha Kizer, the principal of the school A.G.-V.
attended, made the referral to the Department regarding A.G.-V.’s outcry. According to Kizer,
A.G.-V. was sad, withdrawn, and very quiet; she also indicated A.G.-V. fell asleep in class a lot,
which affected her grades. Kizer testified that when she asked A.G.-V. about her fatigue and
school performance, A.G.-V. explained she had to get up very early to get the other children ready
for school and to make meals for everyone before school. There were also times A.G.-V. would
-9-
04-18-00065-CV
arrive at school crying, revealing Mother had slapped or yelled at her because she failed to get
everyone ready for school. Kizer also testified A.G.-V. told her and other staff members that her
parents made her plank for extended periods of time as a form of punishment. With regard to the
sexual abuse allegation, Kizer testified A.G.-V. arrived at school one morning crying and wearing
shorts, which revealed her knees were covered in blood. Kizer testified A.G.-V. was very upset
and threatened to run away. Kizer then contacted the San Antonio Police Department. At that
time, A.G.-V. spoke with a detective and Kizer and revealed that on different occasions, her Father
was inappropriately touching her.
Detective Edward Sandoval was the SAPD detective who met with A.G.-V. According to
Detective Sandoval, A.G.-V. said Father touched “her boobs and her butt when he hugged her”
that morning. However, A.G.-V. was unable to describe exactly how the events transpired.
Detective Sandoval testified that instead of describing the morning incident, A.G.-V. — who was
fifteen-years-old at the time — “relayed an incident that happened when she was 11 years old, and
he licked her vagina.” Detective Sandoval further testified he doubted A.G.-V.’s credibility
because when he asked her why she and Father were fighting that morning, A.G.-V. told him it
was over a cell phone and that she had the phone hidden in her room. However, Detective
Sandoval testified he later learned Kizer was in possession of the cell phone. The record reflects
that at some point, Kizer gave A.G.-V. a cell phone and A.G.-V. recorded an incident that occurred
in the house. The audio recording ultimately ended up with the Department. According to Kizer,
A.G.-V. never gave her back the cell phone, but rather, A.G.-V. took the phone to her counselor,
who listened to the audio recording and shared the audio recording with the Department. Kizer
further stated it was her understanding that Mother ended up with the cell phone.
In addition to Kizer’s testimony, the jury heard testimony from Tiffany Velasquez, a
teacher who taught E.G.-V. and knew A.G.-V. Velasquez testified the children had a strong
- 10 -
04-18-00065-CV
relationship with her and she had concerns about their home life with Mother and Father.
Velasquez testified she was specifically concerned that A.G.-V. was being sexually abused and
that the other children, including the three foster children, were being physically abused. On one
occasion, E.G.-V. told her “something bad happened that morning to [A.G.-V.].” Velasquez
testified that although E.G.-V. never specifically detailed what was happening at home, E.G.-V.
acted out during class. Velasquez further stated that when she would ask E.G.-V. what was wrong,
E.G.-V. would just tell her she was very sad.
Melissa Sagan was a paraprofessional who worked at the school the children attended and
testified about the children’s home life. Sagan testified she knew the family for over five years
and she did not believe there was anything to be concerned about. She testified she did not believe
the children were afraid of Mother and described them as “happy and loving.” She testified the
children were clean and well-nourished. Overall, she trusted Mother with the children. Sagan also
testified A.G.-V would sometimes spend the night at her house because A.G.-V. knew her son,
who was the same age. However, she expressed concern that A.G.-V. and her son may have been
inappropriate with each other, and after talking to Mother about her concern, A.G.-V. stopped
spending the night.
In addition to the foregoing testimony, Father and Mother both testified on their own
behalf. During his testimony, Father described how he and Mother adopted each of the children
subject of this suit, and that the Department first became concerned about the children’s care in
April 2015. Father testified that after receiving a referral that sexual and physical abuse was
occurring in the home, the Department began an investigation, but ultimately “ruled out” the
allegations. According to Father, the Department was unable to confirm the allegations because
A.G.-V. recanted her claims. Father further testified the Department was again called in March
2016 for the same issues, but he denied the allegations of sexual and physical abuse. Father
- 11 -
04-18-00065-CV
testified the Department did not work with him or provide him with a service plan, but eventually
the Department removed all the children from his household. Father denied his home was chaotic,
and when asked about the audio recording, Father stated it was not a normal occurrence, but
admitted those types of instances happened once or twice a month. Father testified he rarely cursed
or yelled at the children and when asked specifically about the instances of requiring A.G.-V. to
care for all the children, making the children plank, hitting the children, or sexually abusing A.G.-
V., he denied all instances. Father further testified he believed A.G.-V. did not want to return, but
he hoped she would be returned to Mother because he and Mother were no longer together. With
regard to the other children, Father testified they appeared to be happy each time he visited them,
and he further added he was highly involved in many of their extracurricular activities. Father also
testified he attended parenting and anger management classes and participated in family
counseling. Father testified he believed he was fully cooperating with the Department.
Mother testified she did not physically abuse the children. Specifically, Mother testified
she did not hit the children but on occasion would spank them; according to Mother, “there is a
distinction [between hitting and spanking].” Mother testified there was only one occasion in which
she made A.G.-V. plank, and it was for one-minute as opposed to ten-minutes. When presented
with the audio recording, Mother testified it was the only time she and her husband yelled and
cussed at the children. When asked about the banging sounds heard on the audio, Mother testified
it was from when she would hit the wall to get the lights to come on. Mother further denied ever
forcing A.G.-V. to plank during the audio recording. When asked whether she believed Father
was sexually abusing A.G.-V., Mother testified she believed something happened to A.G.-V., but
stated she did not believe anything happened between A.G.-V. and Father. Mother then testified
A.G.-V. told her about an incident when she was two-years-old and not living with Mother and
Father. According to Mother, A.G.-V. told her that when she was living with her biological
- 12 -
04-18-00065-CV
mother, an intoxicated man touched her bottom and tried to kiss her and she had to push him off
forcefully and slap him. Mother described A.G.-V. as a challenging child. According to Mother,
A.G.-V. repeatedly lied to school officials and told them she was not being cared for and was being
abused. Mother explained that after the Department became involved with her family in 2016, she
agreed to let A.G.-V. stay with her cousin; however, Mother added she was never happy with that
decision and was sad when A.G.-V. left. According to Mother, she believed the children were
very happy in her home; she described them as “very cheery and happy.” Mother also described
her visits with the children, specifically pointing out D.G.-V. and E.G.-V. would not want the visits
to end and wanted to return home. D.G.-V. and E.G.-V.’s behavior was further confirmed by Rita
Rangel, a counselor who monitored the family’s visits. Rangel testified the three children — M.G.-
V., D.G.-V., and E.G.-V. — were cheerful and excited to see both Mother and Father and were
always hesitant to leave after visitations.
Family counselors who treated the family also provided testimony about Mother and
Father. Jesse Jessup, a licensed counselor, was initially assigned to the case and met with Father
and Mother individually as well as with the children. Jessup testified both Mother and Father
acknowledged their behavior recorded on the audio recording and took responsibility for it. It was
Jessup’s opinion that he believed Mother and Father did not regularly hurt the children and the
recorded incident was a one-time occurrence. Jessup further explained he believed Kizer provoked
A.G.-V. to challenge her parents by giving her a cell phone to record the incident. Like Father and
Mother, Jessup testified problems in the family arose from A.G.-V.’s behavior. Victoria Caylor,
however, disagreed with Jessup’s assessment of the Father and Mother. Caylor testified she began
seeing the family midway through the Department’s involvement with the family, and it was her
opinion the children were not ready to return to the home. Caylor testified it was her opinion that
Mother and Father did not accept responsibility for their behavior because they refused to
- 13 -
04-18-00065-CV
acknowledge that any physical abuse beyond what can be heard in the audio recording occurred.
According to Caylor, Mother was protective of Father and did not believe he sexually abused A.G.-
V. Caylor further testified Mother blamed A.G.-V. for the current situation and opined it was very
concerning that Mother refused to accept any responsibility.
E.R. was Mother’s cousin who took care of A.G.-V. during the course of the Department’s
investigation. According to E.R., Mother did not want A.G.-V. to be placed outside of the home;
however, A.G.-V. was ultimately placed in her home because of the Department’s involvement
with the family. E.R. described A.G.-V. as “not easy” to have in the home because A.G.-V.
behaved inappropriately with boys her own age. It was E.R.’s opinion that A.G.-V. made bad
decisions with boys because she was unable to cope with the sexual abuse she endured from Father.
E.R. stated that at no point did A.G.-V. recant her story, and she believed A.G.-V.’s outcry.
Application
A. Mother’s Appeal
After reviewing the evidence in the light most favorable to the jury’s finding, we hold the
jury could have reasonably formed a firm belief or conviction that termination of Mother’s parental
rights was in the children’s best interests. See In re J.P.B., 180 S.W.3d at 573; In re H.R.M., 209
S.W.3d at 108. The jury heard evidence that Mother was abusing the children by yelling and
cursing at them excessively as well as hitting and slapping them. See TEX. FAM. CODE ANN.
§ 263.307(b)(3) (magnitude, frequency, and circumstances of harm to child); id. § 263.307(b)(7)
(history of abusive or assaultive conduct by child’s family or other with access to child’s home);
Holley, 544 S.W.2d at 371–72. The record reflects several witnesses, including counselors who
treated the children, school officials, and school staff members, expressed concern regarding the
children’s treatment at home. See TEX. FAM. CODE ANN. § 263.307(b)(3); id. § 263.307(b)(7);
Holley, 544 S.W.2d at 371–72. Some witnesses described the children as fearful of Mother and
- 14 -
04-18-00065-CV
Father, and the jury heard evidence of specific incidents of physical abuse A.G.-V. endured — i.e.
coming to school with bloody knees and telling school officials she was often hit and yelled at
when she did not get everyone ready for school. See TEX. FAM. CODE ANN. § 263.307(b)(3); id.
§ 263.307(b)(7); Holley, 544 S.W.2d at 371–72. The jury also heard testimony from the children’s
teachers and therapists in which both D.G.-V. and E.G.-V. showed symptoms of denial and
avoidance and described their home as sometimes “scary.” Although Mother and Father denied
the allegations of physical abuse, the jury further heard an audio recording in which both parents
could be heard yelling and cursing at the children, particularly A.G.-V. A.G.-V. can be heard
crying on the audio recording, pleading for things to stop. In addition to this evidence, the jury
also heard evidence that one of the counselors, Caylor, did not believe Mother met her goals for
reunification even though she completed her anger management and parenting classes and was
attending counseling. See TEX. FAM. CODE ANN. § 263.307(b)(10) (willingness and ability of
child’s family to seek out, accept, and complete services and cooperate with Department); Holley,
544 S.W.2d at 371–72. Caylor testified she believed Mother did not accept responsibility for her
actions, but rather blamed A.G.-V. See TEX. FAM. CODE ANN. § 263.307(b)(11) (willingness and
ability of child’s family to effect positive environmental and personal changes within reasonable
period of time); id. § 263.307(b)(12) (whether child’s family demonstrates adequate parenting
skills); Holley, 544 S.W.2d at 371–72. And, although the jury heard testimony from Mother,
Father, Detective Sandoval, and one of Mother’s counselors, Jessup, who each questioned
A.G.-V.’s credibility, we do not reweigh issues of credibility because it is ultimately for the jury
to believe or disbelieve the witnesses. See J.P.B., 180 S.W.3d at 573. In this case, we hold a
rational trier of fact could have believed the testimony of Principal Kizer, E.R., and Caylor’s
testimony regarding A.G.-V.’s credibility. See id. Accordingly, deferring to the jury’s credibility
determinations, we hold a rational jury could have found termination of Mother’s parental rights
- 15 -
04-18-00065-CV
was in the children’s best interests. See In re J.P.B., 180 S.W.3d at 573; In re H.R.M., 209 S.W.3d
at 108.
B. Father’s Appeal
With respect to Father’s appeal, we also hold the jury could have reasonably formed a firm
belief or conviction that termination of Father’s parental rights was in the children’s best interests.
See In re J.P.B., 180 S.W.3d at 573; In re H.R.M., 209 S.W.3d at 108. Although Father, like
Mother, denied allegations of abuse, the jury heard testimony from different witnesses who
believed Father was sexually abusing A.G.-V. See TEX. FAM. CODE ANN. § 263.307(b)(3); id.
§ 263.307(b)(7); Holley, 544 S.W.2d at 371–72. Specifically, Principal Kizer, E.R., and Caylor
testified they believed A.G.-V.’s outcry, and moreover, they believed Father was grooming the
younger children, particularly M.G.-V., after A.G.-V. was placed out of the home. See TEX. FAM.
CODE ANN. § 263.307(b)(3); id. § 263.307(b)(7); Holley, 544 S.W.2d at 371–72. Although Father
testified he did not sexually abuse A.G.-V. and did not physically hurt or yell at her or any of the
other children, the jury heard the audio recording during which Father can be heard cursing and
yelling at A.G.-V. See TEX. FAM. CODE ANN. § 263.307(b)(3); id. § 263.307(b)(12); Holley, 544
S.W.2d at 371–72. The jury further heard evidence from several witnesses who testified some of
the other children were inappropriately acting out sexually and having behavior problems, which
the witnesses believed was a result of Father’s actions. And again, although there was evidence
Father completed his anger management and parenting classes as well as attended counseling
sessions, there was also evidence that Father failed to meet his goals because he did not accept
responsibility for his behavior. See also TEX. FAM. CODE ANN. § 263.307(b)(10); id.
§ 263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371–72. Having reviewed the
record and deferring to the jury’s credibility determinations, we hold a rational jury could have
- 16 -
04-18-00065-CV
found termination of Father’s parental rights was in the children’s best interests. See In re J.P.B.,
180 S.W.3d at 573; In re H.R.M., 209 S.W.3d at 108.
Jury Charge
In addition to challenging the sufficiency of the evidence, Father challenges the jury
charge, arguing the jury charge did not require the jury to identify the grounds for termination or
make a best interest finding. Here, the jury charge outlined the three statutory grounds — (D),
(E), and (O) — alleged by the Department, charging the jury that termination was authorized if
they believed by clear and convincing evidence that at least one of the three predicate acts
occurred. In the next paragraph, the charge further instructed the jury that termination was
authorized if they also believed by clear and convincing evidence that termination was in the
children’s best interests. The instructions were then followed by broad form questions, asking the
jury to answer “yes” or “no” as to whether Mother’s parental rights should be terminated as to
each child and whether Father’s parental rights should be terminated as to each child. According
to Father, the charge should have included the word “and” between predicate grounds and the best
interest instruction, and by failing to include the word “and,” it was unclear to the jury whether it
had to find both prongs before concluding termination was authorized.
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); J.A.B. v.
Tex. Dep’t of Family and Protective Servs., No. 03-13-00273-CV, 2013 WL 4487513, at *1 (Tex.
App.—Austin Aug. 14, 2013, pet. denied) (mem. op.). “A trial court abuses its discretion when it
acts unreasonably or ‘without reference to any guiding rules and principles.’” J.A.B., 2013 WL
4487513, at *1 (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.
1985)). 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
- 17 -
04-18-00065-CV
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.
Texas Rule of Civil Procedure 277 provides that “[i]n all jury cases, the trial court shall,
whenever feasible, submit the cause on broad form questions.” TEX. R. CIV. P. 277. “The Texas
Supreme Court has determined that Rule 277 applies in proceedings to terminate parental rights.”
In re L.C., 145 S.W.3d 790, 794 (Tex. App.—Texarkana 2004, no pet.).
Here, the jury charge instructed the jury that termination of Mother and Father’s parental
rights may be authorized if one of the three alleged statutory grounds were established by clear
and convincing evidence. It further stated that for termination to be authorized, “it must also be
proven by clear and convincing evidence that termination of the parent-child relationship is in the
best interest of the children.” Accordingly, we disagree with Father’s contention that the jury
charge was unclear. In this case, the jury charge used the word “also” and specifically instructed
the jury that for termination to be authorized, both a predicate ground as well as a best interest
finding must be proven by clear and convincing evidence. Thereafter, the instruction was followed
by a proper controlling question. See TEX. R. CIV. P. 277; In re L.C., 145 S.W.3d at 794.
Accordingly, we overrule Father’s final issue.
CONCLUSION
Based on the foregoing, we affirm the trial court’s order terminating Mother and Father’s
parental rights.
Marialyn Barnard, Justice
- 18 -