in the Interest of H.D.B.M., a Child ( 2013 )

IN THE
TENTH COURT OF APPEALS
No. 10-12-00423-CV
IN THE INTEREST OF H.D.B.-M., A CHILD,
From the 74th District Court
McLennan County, Texas
Trial Court No. 2011-2603-3
MEMORANDUM OPINION
In this appeal, appellants, Soundra Lynn Browne and Johnny Mansel Jr.,
challenge the trial court’s judgment terminating their parental rights to H.D.B.-M. Both
Browne and Mansel have filed appellate briefs in this matter raising a number of issues.
We affirm.
I. BACKGROUND1
On June 12, 2011, the Texas Department of Family and Protective Services (the
“Department”) received a referral alleging neglectful supervision of H.D.B.-.M. by
Browne. The referral indicated that Browne had given birth to H.D.B.-M. and that the
1 Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
child was born prematurely and was in the neonatal intensive care unit on a breathing
apparatus. Browne admitted to having taken hydrocodone the previous afternoon; she
also noted that she sometimes smokes cigarettes. However, Browne denied using drugs
or drinking alcohol during her pregnancy, and it was believed that Browne’s
hydrocodone use likely did not contribute to the premature pregnancy. The referral
also indicated that Browne’s two previous children had been removed by the
Department. One of the removals involved T.B. who was repeatedly sexually assaulted
by Browne’s brother, who previously lived with Browne and T.B. Browne’s brother
also did cocaine in the same house in which Browne and T.B. lived.
Representatives from the Department interviewed Browne about H.D.B.-M.
Browne was not forthcoming regarding the true father of the child. Mansel had driven
Browne to the hospital that day, and he was also interviewed. He provided the
Department with a false identity and address. He claimed to be Jimmy Mansel, who is
Mansel’s brother. According to Department representatives, both Browne and Mansel
were trying to obscure the fact that Mansel is the biological father of H.D.B.-M because
they were afraid the Department would remove the child. Mansel initially denied that
he and Browne were in a relationship, and he denied that the child was his, though he
noted that he was willing to help support the child. Mansel later admitted that he is the
father of H.D.B.-M.
In the Interest of H.D.B.-M. Page 2
The Department later learned that Mansel had previously been convicted twice
of aggravated sexual assault of his fourteen-year-old cousin.2 As a result of the
convictions, Mansel served fifteen years in the Institutional Division of the Texas
Department of Criminal Justice (”TDCJ”). In addition, Mansel was ordered to register
as a sex offender. TDCJ labeled Mansel as a moderate risk for re-offending. The
Department also discovered that Mansel was HIV-positive and had Hepatitis C at the
time of H.D.B.-M.’s conception.
Based on the foregoing, the Department removed the child and placed him in
foster care.
Subsequently, on June 20, 2011, the Department filed its original petition, seeking
to terminate the parental rights of both Browne and Mansel. For both Browne and
Mansel, the Department alleged six grounds for termination.
The case proceeded to trial in late August 2012. At trial, several witnesses
testified, including Browne, Mansel, psychologist Dr. James Shinder, and CASA
representative Carrie Tatum, among others. At the conclusion of the evidence, the jury
found clear and convincing evidence that Browne violated subsections (D), (E), and (O)
of Texas Family Code section 161.001 and that the termination of Browne’s parental
rights was in the child’s best interest. See TEX. FAM. CODE ANN. § 161.001(D)-(E), (O)
(West Supp. 2012). With respect to Mansel, the jury found clear and convincing
evidence that he violated subsections (D), (E), (O), and (L) of Texas Family Code section
2At trial, Mansel denied committing the offenses, but Mansel’s written, voluntary statement
regarding the offenses was admitted into evidence. In addition, the judgments from the convictions were
also admitted into evidence.
In the Interest of H.D.B.-M. Page 3
161.001 and that the termination of his parental rights was in the child’s best interest.
See id. § 161.001(D)-(E), (O), (L). The trial court adopted the jury’s findings and signed
the final order of termination on October 30, 2012.
Thereafter, Browne filed a motion for new trial, asserting that the evidence
supporting the predicate grounds for termination was legally and factually insufficient.
Mansel did not file any post-judgment motions. On November 19, 2012, both Mansel
and Browne filed separate notices of accelerated appeal.
II. STANDARD OF REVIEW AND APPLICABLE LAW
A. Termination of Parental Rights
A parent’s rights to “the companionship, care, custody, and management” of his
or her children are constitutional interests “far more precious than any property right.”
Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 1397, 71 L. Ed. 2d 599 (1982); In
re M.S., 115 S.W.3d 534, 547 (Tex. 2003). “While parental rights are of constitutional
magnitude, they are not absolute. Just as it is imperative for courts to recognize the
constitutional underpinnings of the parent-child relationship, it is also essential that
emotional and physical interests of the child not be sacrificed merely to preserve that
right.” In re C.H., 89 S.W.3d 17, 26 (Tex. 2002); see In re A.V., 113 S.W.3d 355, 361 (Tex.
2003) (“But this Court has stated that ‘the rights of natural parents are not absolute;
protection of the child is paramount. . . . The rights of parenthood are accorded only to
those fit to accept the accompanying responsibilities.’” (quoting In re J.W.T., 872 S.W.2d
189, 195 (Tex. 1993) (citations omitted))). In a termination case, the petitioner seeks not
only to limit parental rights but to eradicate them permanently by divesting the parent
In the Interest of H.D.B.-M. Page 4
and child of all legal rights, privileges, duties, and powers normally existing between
them, except for the child’s right to inherit. TEX. FAM. CODE ANN. § 161.206(b) (West
2008); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination
proceedings and strictly construe involuntary termination statutes in favor of the
parent. See Holick, 685 S.W.2d at 20-21.
In an involuntary termination proceeding brought under section 161.001 of the
family code, the Department must establish: (1) at least one ground under subsection
(1) of section 161.001; and (2) that termination is in the best interest of the child. TEX.
FAM. CODE ANN. § 161.001; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must
be established; termination may not be based solely on the best interest of the child as
determined by the trier of fact. See Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531,
533 (Tex. 1987).
Termination decisions must be supported by clear and convincing evidence.
TEX. FAM. CODE ANN. §§ 161.001, 161.206(a). Evidence is clear and convincing if it “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 (West 2008). Due process demands
this heightened standard because termination results in permanent, irrevocable changes
for the parent and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243
S.W.3d 611, 616 (Tex. 2007) (contrasting the standards for termination and
modification).
In the Interest of H.D.B.-M. Page 5
B. Sufficiency of the Evidence in Parental-Termination Cases
On appeal, both Browne and Mansel focus their complaints on the sufficiency of
the evidence establishing predicate violations of section 161.001(1) of the Texas Family
Code. In reviewing the evidence for legal sufficiency in parental-termination cases, we
must determine whether the evidence is such that a factfinder could reasonably form a
firm belief or conviction that the grounds for termination were proven. In re J.P.B., 180
S.W.3d 570, 573 (Tex. 2005). We must review all the evidence in the light most favorable
to the finding and judgment and assume that the factfinder resolved any disputed facts
in favor of its finding if a reasonable factfinder could have done so. Id. We must also
disregard all evidence that a reasonable factfinder could have disbelieved. Id. We must
consider, however, undisputed evidence, even if it is contrary to the finding. Id.
It is necessary to consider all of the evidence, not just that which favors the
verdict. Id. However, we cannot weigh witness credibility issues that depend on the
appearance and demeanor of the witnesses, for that is within the factfinder’s province.
Id. at 573-74. And even when credibility issues appear in the appellate record, we must
defer to the factfinder’s determinations as long as they are not unreasonable. Id. at 573.
In reviewing the evidence for factual sufficiency, we must give due deference to
the factfinder’s findings and be careful to not supplant the factfinder’s judgment with
our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine whether,
on the entire record, a factfinder could reasonably form a firm conviction or belief that
the parent violated the relevant conduct provisions of section 161.001(1) and that the
termination of the parent-child relationship would be in the best interest of the child. In
In the Interest of H.D.B.-M. Page 6
re C.H., 89 S.W.3d at 28. If, in light of the entire record, the disputed evidence that a
reasonable factfinder could not have credited in favor of the finding is so significant
that a factfinder could not reasonably have formed a firm belief or conviction in the
truth of its finding, then the evidence is factually insufficient. In re H.R.M., 209 S.W.3d
at 108.
III. BROWNE’S APPELLATE COMPLAINTS
In three issues, Browne challenges the sufficiency of the evidence supporting the
jury’s findings that she violated three provisions of section 161.001(1). In her fourth
issue, Browne argues that the trial court abused its discretion by failing to exclude
Tatum from the courtroom pursuant to Texas Rule of Evidence 614. See TEX. R. EVID.
614. As a preliminary matter, we will address Browne’s fourth issue first.
A. The Rule
Texas Rule of Evidence 614 and Texas Rule of Civil Procedure 267 (also known as
“the Rule”) provide for the exclusion of witnesses from the courtroom during trial. See
id.; see also TEX. R. CIV. P. 267. The purpose of the rule is to minimize witnesses’ tailoring
their testimony in response to that of other witnesses and to prevent collusion among
witnesses testifying for the same side. See Drilex Sys., Inc. v. Flores, 1 S.W.3d 112, 116
(Tex. 1999); In re C.J.B., 137 S.W.3d 814, 824-25 (Tex. App.—Waco 2004, no pet.). The
witnesses under the Rule generally may not discuss the case with anyone other than the
attorneys in the case. Drilex Sys., Inc., 1 S.W.3d at 117. When the rule is violated, the
trial court may allow the testimony of the potential witness, exclude the testimony, or
hold the violator in contempt. Id.; see In re D.T.C., 30 S.W.3d 43, 49 (Tex. App.—
In the Interest of H.D.B.-M. Page 7
Houston [14th Dist.] 2000, no pet.). We review the trial court’s action for an abuse of
discretion. Drilex Sys., Inc., 1 S.W.3d at 117-18.
Nevertheless, certain classes of prospective witnesses are exempt from exclusion
from the courtroom, including: (1) a party who is a natural person or his or her spouse;
(2) an officer or employee of a party that is not a natural person and who is designated
as its representative by its attorney; or (3) a person whose presence is shown by a party
to be essential to the presentation of the cause. TEX. R. CIV. P. 267(b); see TEX. R. EVID.
614. In addition, the burden rests with the party seeking to exempt a witness from the
Rule’s exclusion requirement to establish that the witness’s presence is essential. Drilex
Sys., Inc., 1 S.W.3d at 117.
Here, Browne complains that Tatum, a CASA supervisor who served as the
organization’s representative at the trial, should have been excluded from the
courtroom because she was not officially designated as a representative by any party to
the case. In particular, Browne points out that Stephanie Lane was designated as CPS’s
representative, but CASA failed to identify its representative when the Rule was
invoked. And as a result of the alleged error, Browne was harmed “because Tatum was
allowed to provide testimony directly contrary to Browne’s on some critical issues.”
Prior to Tatum’s testimony at trial, Browne’s trial counsel objected to Tatum
testifying, arguing that she should have been excluded from the courtroom pursuant to
Texas Rule of Evidence 614. See TEX. R. EVID. 614. In overruling the objection, the trial
court noted that CASA was the court-appointed guardian ad litem and that Tatum is
In the Interest of H.D.B.-M. Page 8
CASA’s representative. Browne’s trial counsel was unable to provide the trial court
with case law refuting the trial court’s determination.
In a termination suit filed by a governmental entity, the trial court may appoint a
charitable organization composed of volunteer advocates to appear at court hearings as
a guardian ad litem for the child. See TEX. FAM. CODE ANN. § 107.031(a) (West 2008); see
also In re J.S., No. 09-10-00304-CV, 2010 Tex. App. LEXIS 8458, at **2-3 (Tex. App.—
Beaumont Oct. 21, 2010, no pet.) (mem. op.). Furthermore, a guardian ad litem is
entitled to appear at all hearings. See TEX. FAM. CODE ANN. § 107.002(c)(4) (West 2008);
see also In re J.S., 2010 Tex. App. LEXIS 8458, at *3. Because a guardian ad litem is
entitled to appear at all hearings, we do not believe that the Rule operates to exclude the
guardian ad litem from the courtroom. See TEX. FAM. CODE ANN. § 107.002(c)(4); In re
K.C.P., 142 S.W.3d 574, 585 (Tex. App.—Texarkana 2004, no pet.) (using the Code
Construction Act to conclude that the specific provision of the Texas Family Code
allowing the guardian ad litem to attend all legal proceedings in a case prevails over the
more general language of the Texas Rules of Evidence excluding witnesses from the
courtroom when the Rule is invoked); see also In re J.S., 2010 Tex. App. LEXIS 8458, at *3.
Thus, we believe that Tatum was not subject to the Rule because she was serving as the
guardian ad litem in this case. See TEX. FAM. CODE ANN. §§ 107.002, 107.031(a); In re
K.C.P., 142 S.W.3d at 585; see also In re J.S., 2010 Tex. App. LEXIS 8458, at **2-3.
And even if that is not the case, the trial court is vested with discretion to, among
other things, allow the testimony of a witness, even if the Rule has been violated. See
Drilex Sys., Inc., 1 S.W.3d at 117; see also In re D.T.C., 30 S.W.3d at 49. Therefore, based
In the Interest of H.D.B.-M. Page 9
on the foregoing, we cannot say that Browne has demonstrated that the trial court
abused its discretion in overruling her objection to Tatum’s testimony. See Drilex Sys.,
Inc., 1 S.W.3d at 117-18. Accordingly, we overrule Browne’s fourth issue.
B. The Predicate Violations
With regard to the predicate violations, the trial court adopted the jury’s findings
that there was clear and convincing evidence that Browne: (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”; (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”; and (3) “failed to comply with the
provisions of a court order that specifically established the actions necessary for the
mother to obtain the return of the child . . . .” TEX. FAM. CODE ANN. § 161.001(1)(D)-(E),
(O). For the reasons mentioned below, we conclude that the record contains sufficient
evidence to support the jury’s finding that Browne “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.” See id. § 161.001(1)(E).
The predicate condition of section 161.001(1)(E) is satisfied if the parent has
“engaged in conduct . . . which endangers the physical or emotional well-being of the
child.” Id. In this context, “endanger” means to expose to loss or injury or to
jeopardize. Boyd, 727 S.W.2d at 533. The term means “more than a threat of
metaphysical injury or the possible ill effects of a less-than-ideal family environment,”
but “it is not necessary that the conduct be directed at the child or that the child actually
In the Interest of H.D.B.-M. Page 10
suffers injury.” Id. The Department bears the burden of introducing evidence
concerning the offense and establishing that the offense was part of a voluntary course
of conduct that endangered the child’s well-being. In re E.N.C., 384 S.W.3d 796, 805
(Tex. 2012); see Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 616-17
(Tex. App.—Houston [1st Dist.] 2009, pet. denied). To determine whether termination
is justified, courts may look to parental conduct both before and after the child’s birth.
In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (“It necessarily follows that the endangering
conduct may include the parent’s actions before the child’s birth, while the parent had
custody of older children . . . .”). The conduct need not occur in the child’s presence,
and it may occur “both before and after the child has been removed.” Walker, 312
S.W.3d at 617.
Here, the record reflects several actions taken by Browne that endanger the
physical or emotional well-being of H.D.B.-M. First, Mansel testified that he is HIV-
positive and that he has Hepatitis C. He also stated that he told Browne about these
conditions when they first started dating. Despite the harm that could have resulted to
the child, Browne chose to have sexual intercourse with Mansel. And further, the
record indicates that there were complications with the child’s birth, which necessitated
a stay in the neonatal intensive care unit.3 Clearly, this evidence suggests that Browne
deliberately exposed herself and the child to the possible complications associated with
Mansel’s serious medical conditions. See In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—
3Witnesses testified that the child had problems breathing at the time of birth. Mansel testified
that he was told the child’s medical condition was not caused by HIV or Hepatitis C.
In the Interest of H.D.B.-M. Page 11
Houston [14th Dist.] 2005, no pet.) (“It is not necessary that the parent’s conduct be
directed at the child or that the child actually be injured; rather, a child is endangered
when the environment or the parent’s course of conduct creates a potential for danger
which the parent is aware of but disregards.”).
Additionally, the evidence demonstrates that Browne was informed of Mansel’s
two prior criminal convictions for aggravated sexual assault of children, yet she insisted
on living with Mansel, maintaining a romantic relationship with Mansel, and relying on
Mansel’s family for support when the child was first born.4 See In re E.N.C., 384 S.W.3d
at 805 (“We agree that an offense occurring before a person’s children are born can be a
relevant factor in establishing an endangering course of conduct.”); see also In re J.T.G.,
121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.) (“Conduct of a parent in the
home can create an environment that endangers the physical and emotional well-being
of a child.”). And despite lying to the Department about Mansel’s identity when
H.D.B.-M. was born, Browne now believes that it is not in the child’s best interest to be
left alone with Mansel.5 Further, the record contains testimony that Mansel is regarded
as a moderate risk for re-offending, and psychologist Dr. James Shinder stated that
4 With regard to her financial situation, Browne testified that she receives SSI benefits and that
she could work but chooses not to do so. See In re M.N.G., 147 S.W.3d 521, 539-39 (Tex. App.—Fort Worth
2004, pet. denied) (op. on reh’g) (noting that a parent’s prolonged history of unemployment and financial
instability, among other things, indicates an inability to provide for the child, which is a relevant
consideration in the trial court’s finding of endangerment); see also In re R.M., No. 07-12-00412-CV, 2012
Tex. App. LEXIS 10239, at *13 (Tex. App.—Amarillo Dec. 11, 2012, no pet.) (mem. op.).
5However, Browne admitted that Mansel brought her to the hearings in this case and that she
loves him.
In the Interest of H.D.B.-M. Page 12
placing the child with Browne and Mansel is unquestionably dangerous.6 See In re
Tidwell, 35 S.W.3d 115, 119-20 (Tex. App.—Texarkana 2000, no pet.) (“It is not necessary
for [the mother] to have had certain knowledge that one of the [sexual molestation]
offenses actually occurred; it is sufficient that she was aware of the potential for danger
to the children and disregarded that risk by breaking her agreement with the court and
placing and leaving the children in that environment.”). Dr. Shinder also opined that,
after speaking with and testing both, neither Browne nor Mansel is capable of
protecting H.D.B.-M. In fact, witnesses testified that Browne chose not to move from
the apartment complex where she lived even though a murder had recently taken place
at the complex. In addition, Mansel testified that he does not believe that the child
should be placed with Browne because she is a “psycho.”
In addition, the circumstances surrounding Browne’s relinquishment of her
parental rights to another child, T.B., are significant to show a voluntary, deliberate, and
conscious course of endangering conduct by Browne. Browne acknowledged that she
voluntarily relinquished her parental rights to T.B. a couple of months prior to H.D.B.-
M.’s birth.7 She testified that T.B. was repeatedly sexually assaulted by Browne’s
brother who was living with Browne and T.B. at the time. See In re J.T.G., 121 S.W.3d at
125 (“For example, abusive or violent conduct by a parent or other resident of a child’s
6 Regarding Mansel’s risk-level status, the Department proffered evidence explaining that a
moderate risk level “indicates that the person poses a moderate danger to the community and may
continue to engage in criminal sexual conduct.”
She also noted that her first-born child was adopted and lives in Michigan. T.B. and H.D.B.-M.
7
are Browne’s second and third-born children, respectively.
In the Interest of H.D.B.-M. Page 13
home may produce an environment that endangers the physical or emotional well-
being of a child.”). At first, Browne did not believe T.B.’s outcry that Browne’s brother
had repeatedly sexually assaulted him. See In re J.O.A., 283 S.W.3d at 345. Dr. Shinder
recounted that Browne did not believe T.B.’s outcry until her brother actually admitted
to the abuse. And once she found out about the abuse of T.B., Browne threatened to
have T.B. castrated when he became a teenager so that he could not have sex with
others. Browne later clarified that she intended that T.B. get a vasectomy when he
reached the age of fifteen. In any event, Browne also admitted that her brother did
cocaine at the house and ate all of T.B.’s food, which forced her to write a letter to T.B.’s
school notifying school administration that T.B. did not have any food to eat.
Viewing the evidence in the light most favorable to the judgment, we conclude
that a reasonable factfinder could form a firm belief or conviction that Browne
“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.” See TEX.
FAM. CODE ANN. § 161.001(1)(E); see also In re J.P.B., 180 S.W.3d at 573. As such, we hold
that the evidence is legally sufficient to support the determination that Browne engaged
in conduct proscribed by subsection (E) of section 161.001(1). See TEX. FAM. CODE ANN.
§ 161.001(1)(E); see also In re J.P.B., 180 S.W.3d at 573. Moreover, in light of the entire
record, we conclude that the evidence supporting termination with respect to
subsection (E) is also factually sufficient. See TEX. FAM. CODE ANN. § 161.001(1)(E); see
also In re H.R.M., 209 S.W.3d at 108. We therefore overrule Browne’s third issue.
In the Interest of H.D.B.-M. Page 14
And because a finding of only one ground alleged under section 161.001(1) is
necessary to support a judgment of termination, we need not address Browne’s other
issues. See TEX. R. APP. P. 47.1; see also In re J.L., 163 S.W.3d at 84; In re A.V., 113 S.W.3d
at 362 (“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.”).8 Accordingly, Browne’s first and second issues are overruled.
IV. MANSEL’S APPELLATE COMPLAINTS
Mansel raises five issues on appeal. In his first issue, Mansel argues that the trial
court erred in submitting a jury question regarding section 161.001(1)(L) of the Texas
Family Code because there is no evidence of any serious injury to the child that was the
subject of the conviction. Mansel’s remaining issues challenge the sufficiency of the
evidence supporting termination based on findings of several predicate violations. The
Department counters that the trial court did not err in submitting a question as to
section 161.001(1)(L) because the evidence demonstrates that Mansel caused serious
injury to the child he sexually assaulted. The Department also argues that Mansel failed
to preserve error as to his remaining sufficiency issues.
At the outset, we note that Mansel does not assert that the evidence is factually
insufficient to support the termination findings, nor does he challenge the jury’s best-
interest finding. This is likely due to the fact that this Court recently held that in
parental-rights-termination cases, “to raise a factual-sufficiency complaint on appeal, it
8 Browne does not challenge the sufficiency of the evidence supporting the finding that
termination of her parental rights is in the child’s best interest.
In the Interest of H.D.B.-M. Page 15
must be preserved by including it in a motion for new trial.” In re A.M., 385 S.W.3d 74,
2012 Tex. App. LEXIS 6705, at *6 (Tex. App.—Waco Aug. 9, 2012, pet. denied); see TEX.
R. CIV. P. 324(b)(2). Here, Mansel did not file a motion for new trial. In addition, voir
dire in this case began on August 28, 2012—nineteen days after we issued our opinion
in In re A.M.; thus, the In re A.M. requirements were binding on the parties in this case.
See In re A.M., 2012 Tex. App. LEXIS 6705, at **8-9 (stating that the requirement to
preserve a factual-sufficiency complaint in a termination case by filing a motion for new
trial is prospective, rather than retroactive, in nature).
In any event, Mansel does argue that the evidence supporting the findings of
several predicate violations is legally insufficient. With regard to preservation, this
Court has held that a legal-sufficiency challenge in a parental-rights-termination case
can be preserved by: (1) a motion for new trial; (2) a motion for an instructed verdict;
(3) an objection to the submission of a question in the jury charge; (4) a motion for a
judgment notwithstanding the verdict; or (5) a motion to disregard the jury’s answer to
a question in the verdict. See In re A.P., 42 S.W.3d 248, 254 n.1 (Tex. App.—Waco 2001,
no pet.), overruled on other grounds by In re A.M., 2012 Tex. App. LEXIS 6705, at *6 (citing
Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex. 1991)); see also In re S.J.T.B., No. 09-12-00098-
CV, 2012 Tex. App. LEXIS 9445, at *17 (Tex. App.—Beaumont Nov. 15, 2012, no pet.)
(mem. op.).
As mentioned above, Mansel did not file a motion for new trial. Furthermore, a
review of the record shows that Mansel did not move for an instructed verdict, for a
judgment notwithstanding the verdict, or to disregard the jury’s answer to a question in
In the Interest of H.D.B.-M. Page 16
the verdict. Instead, Mansel objected to Question 3(D) in the portion of the jury charge
pertaining to Mansel, which asked the following:
Has been convicted or has been placed on community supervision,
including deferred adjudication community supervision, for being
criminally responsible for the death or serious injury of a child or
adjudicated for conduct that caused the death or serious injury of a child
and that would constitute a violation of the Texas Penal Code Section
22.021 for Aggravated Sexual Assault.
See TEX. FAM. CODE ANN. § 161.001(1)(L). He did not object to any other questions in the
charge.
Because Mansel does not challenge the factual sufficiency of the evidence
supporting the termination findings, and because Mansel did not file any of the
aforementioned motions or objections to the remaining three termination grounds,
sections 161.001(1)(D), (E), and (O), we conclude that Mansel has not preserved his
appellate complaints as to the termination grounds corresponding to sections
161.001(1)(D), (E), and (O). See Cecil, 804 S.W.2d at 510-11; In re A.P., 42 S.W.3d at 254
n.1; see also In re S.J.T.B., 2012 Tex. App. LEXIS 9445, at *17. Mansel’s failure to preserve
his appellate complaints as to sections 161.001(1)(D), (E), and (O) renders these
termination grounds unchallenged on appeal. Moreover, because 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, see In re A.V.,
113 S.W.3d at 362, any of these unchallenged findings was sufficient to support
termination as long as termination was shown to be in the child’s best interest—an issue
that also was unchallenged, though we believe, after reviewing the record in the
In the Interest of H.D.B.-M. Page 17
appropriate light, that termination in this case is in the best interest of H.D.B.-M. See
TEX. FAM. CODE ANN. § 161.001(1); In re B.K.D., 131 S.W.3d 10, 16 (Tex. App.—Fort
Worth 2003, pet. denied) (citing In re B.B., 971 S.W.2d 160, 163 (Tex. App.—Beaumont
1998, pet. denied), disapproved on other grounds by In re C.H., 89 S.W.3d at 17; Ziegler v.
Tarrant County Child Welfare Unit, 680 S.W.2d 674, 678 (Tex. App.—Fort Worth 1984,
writ ref’d n.r.e.)); see also In re M.J., No. 11-12-00065-CV, 2012 Tex. App. LEXIS 7871, at
*6 (Tex. App.—Eastland Sept. 13, 2012, no pet.) (mem. op.).
Therefore, based on the foregoing, we affirm the trial court’s judgment of
termination as to Mansel. As such, all of his appellate issues are overruled.
V. CONCLUSION
Having overruled all of Browne’s and Mansel’s issues on appeal, we affirm the
judgment of the trial court terminating the parental rights of Browne and Mansel.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed February 28, 2013
[CV06]
In the Interest of H.D.B.-M. Page 18