in the Interest of M.F., C.B.F. and E.F., Children ( 2010 )

Opinion filed May 13, 2010
In The
Eleventh Court of Appeals
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No. 11-08-00276-CV
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IN THE INTEREST OF M.F., C.B.F., & E.F., CHILDREN
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CV 05-09-419
MEMORANDUM OPINION
James Earl Foster and Shonda Lean Foster1 appeal from the trial court’s order
terminating their parental rights to their three children M.F., C.B.F., and E.F. We affirm.
On September 16, 2005, the Texas Department of Family and Protective Services filed its
original petition for protection of a child. The trial court entered an order naming the
Department as sole managing conservator of the children. The children were placed with their
paternal great aunt and uncle, David and Barbara Wiedebusch. After a mediated settlement, the
trial court entered an agreed final order on October 30, 2006, in which it named the
Wiedebusches as the permanent managing conservators of the three children. The agreed order
named James Foster and Shonda Foster as possessory conservators of the children and
established a detailed visitation schedule. On October 2, 2007, the Wiedebusches relinquished
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Shonda Foster is also referred to as Shanda Foster in the record.
custody of the children to the Department after conflicts arose between the Wiedebusches and
James and Shonda Foster. The Department was again named managing conservators of the
children. The Department filed a petition to terminate the parental rights of James and Shonda
Foster. After a jury trial, the trial court entered an order terminating the parental rights of James
and Shonda Foster to M.F., C.B.F., and E.F. It is from this order that the parties appeal.
James brings three issues on appeal, and Shonda brings four issues on appeal. Both
James and Shonda argue that the trial court erred in ruling that the Department had standing to
proceed after the mediated settlement agreement. TEX. FAM. CODE ANN. § 102.003(a)(5)
(Vernon Supp. 2009) states that a governmental agency has standing to file an original suit
affecting the parent-child relationship at any time. Further, TEX. FAM. CODE ANN. § 262.001(a)
(Vernon 2008) states that a governmental entity “may file a suit affecting the parent-child
relationship requesting an order or take possession of a child without a court order as provided
by this chapter.” The mediated settlement agreement did not deny the Department standing, and
the trial court did not err when it found that the Department had standing to file suit. We
overrule both James’s and Shonda’s third issues on appeal.
James and Shonda both argue that the trial court erred in allowing testimony concerning
conduct that occurred prior to the mediated settlement agreement. James and Shonda contend
that, after the mediated settlement and agreed final order, the Department was no longer a party
to the action. James and Shonda further argue that res judicata prevents the Department from
offering evidence of misconduct that occurred prior to the agreed final order. TEX. FAM. CODE
ANN. § 161.004 (Vernon 2008) is instructive:
(a) The court may terminate the parent-child relationship after rendition of
an order that previously denied termination of the parent-child relationship if:
(1) the petition under this section is filed after the date the
order denying termination was rendered;
(2) the circumstances of the child, parent, sole managing
conservator, possessory conservator, or other party affected by the
order denying termination have materially and substantially
changed since the date that the order was rendered;
(3) the parent committed an act listed under Section
161.001 before the date the order denying termination was
rendered; and
(4) termination is in the best interest of the child.
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(b) At a hearing under this section, the court may consider evidence
presented at a previous hearing in a suit for termination of the parent-child
relationship of the parent with respect to the same child.
Although there was not a previous order denying termination of James’s and Shonda’s
parental rights, there was an agreed final order in response to a petition to terminate their
parental rights. The Department filed a subsequent petition to terminate James’s and Shonda’s
parental rights after the agreed final order. The circumstances of the children had materially
changed as the managing conservators of the children, the Wiedebusches, had relinquished
custody of the children based upon conflicts with James and Shonda. Section 161.004 allows the
trial court to consider evidence presented in a previous hearing in a suit for termination, and we
follow that reasoning and find that the trial court could consider evidence of conduct prior to the
agreed final order. We overrule both James’s and Shonda’s second issues on appeal.
In his first issue on appeal, James argues that the evidence is factually insufficient to
support the jury’s finding of termination. In her first issue on appeal, Shonda argues that the
evidence is legally insufficient to support the jury’s finding of termination.
Due process requires that the grounds for termination be established by clear and
convincing evidence. This requires that measure or degree of proof that will produce in the
mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be
established. TEX. FAM. CODE ANN. § 101.007 (Vernon 2008); Transp. Ins. Co. v. Moriel, 879
S.W.2d 10, 31 (Tex. 1994). When conducting a legal sufficiency review, we review the entire
record in the light most favorable to the finding and determine whether a reasonable trier of fact
could have formed a firm belief or conviction that its finding was true. City of Keller v. Wilson,
168 S.W.3d 802, 817 (Tex. 2005); In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); In re J.P.H.,
196 S.W.3d 289, 292 (Tex. App.—Eastland 2006, no pet.). We must assume that the factfinder
resolved disputed facts in favor of its finding. Phillips v. Tex. Dep’t of Protective & Regulatory
Servs., 149 S.W.3d 814, 817 (Tex. App.—Eastland 2004, no pet.). We must also disregard all
evidence that a reasonable factfinder could have disbelieved or found incredible, but we cannot
disregard undisputed facts. In re J.F.C., 96 S.W.3d at 266.
When conducting a factual sufficiency review, we review the entire record, including
evidence in support of and contrary to the judgment, and give due consideration to evidence the
trial court could have found to be clear and convincing. In re C.H., 89 S.W.3d 17, 25 (Tex.
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2002); In re J.P.H., 196 S.W.3d at 292-93. We then determine whether the evidence is such that
a factfinder could reasonably form a firm belief or conviction about the truth of the State’s
allegations. In re C.H., 89 S.W.3d at 25; In re J.P.H., 196 S.W.3d at 292. We also consider
whether any disputed evidence is such that a reasonable factfinder could not have resolved that
evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266.
The Department sought termination under provisions set out in TEX. FAM. CODE ANN.
§ 161.001(1) (Vernon Supp. 2009) including:
(D) knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or emotional well-being
of the child;
(E) 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;
(F) failed to support the child in accordance with the parent’s ability
during a period of one year ending within six months of the date of the filing of
the petition; [or]
(O) failed to comply with the provisions of a court order that specifically
established the actions necessary for the parent to obtain the return of the child
who has been in the permanent or temporary managing conservatorship of the
Department of Family and Protective Services for not less than nine months as a
result of the child’s removal from the parent under Chapter 262 for the abuse or
neglect of the child.
There must also be a finding that termination is in the best interest of the child. TEX. FAM. CODE
ANN. § 161.001(2) (Vernon Supp. 2009).
“Endanger” means more than a threat of metaphysical injury or a less than ideal
environment, but the conduct need not actually injure the child, nor is it necessary that the
conduct be directed at the child. “Endanger” “means to expose to loss or injury; to jeopardize.”
Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); Phillips, 149 S.W.3d at
817. The Department need not establish the specific danger to the child’s well-being as an
independent proposition; the danger may be inferred from parental misconduct. Phillips, 149
S.W.3d at 817; In re J.J. & K.J., 911 S.W.2d 437, 440 (Tex. App.—Texarkana 1995, writ den’d).
The Department received numerous reports of abuse and neglect in the home of James
and Shonda beginning in 1997. In 2004, the trial court issued a protective order in which it
ordered that James not commit domestic violence against Shonda and that James not have
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contact with Shonda. Shonda had previously filed an application for a protective order in 2002.
James testified at the termination hearing that he and Shonda had physical altercations in front of
the children. The police were called to the home numerous times as a result of domestic
violence. M.F. called the police to come to the house on one occasion. James testified that he
and Shonda engaged in conduct that endangered the well-being of the children.
A Department investigation in 2005 revealed serious ongoing domestic violence in the
home. The Department received a priority referral for M.F., C.B.F., and E.F. on September 2,
2005, for the alleged physical abuse of C.B.F. by James and Shonda. C.B.F. had a bruise and
knot on the middle of her forehead, and she said James caused the injury. C.B.F. later said she
did not know how she got the knot and bruise. M.F. and C.B.F. told school officials about
numerous incidents of domestic violence.
After their removal from James and Shonda, M.F. and C.B.F. received counseling
services from Lynn Sharpin. Sharpin testified that M.F. and C.B.F. were initially hostile and
physically aggressive. M.F. and C.B.F. were “calming down” and “stabilizing in their
adjustment” after six months in the Wiedebusches’ home, but when visitation started with James
and Shonda, they regressed. M.F. and C.B.F. told Sharpin that James and Shonda fought a lot
and that Shonda took drugs. M.F. and C.B.F. drew pictures that showed James throwing Shonda
to the floor, James choking Shonda, and James bending Shonda’s hand backwards. M.F. and
C.B.F. told Sharpin that they did not feel safe returning to James and Shonda.
Shonda testified at the termination hearing that she was arrested after an altercation in the
home in which she became angry and threw a knife. Shonda was also arrested as a result of a
confrontation during an exchange of the children with the Wiedebusches. Shonda stated that she
developed a problem with painkillers in 1999 and started using methamphetamine in 2005.
Shonda testified that she was arrested on June 14, 2008, and again on July 5, 2008, for
possession of a controlled substance. Shonda submitted to a hair follicle drug test on March 30,
2007, that was positive for a controlled substance, but a test on April 24, 2007, was negative.
Shonda was indicted in 2008 for stealing lottery tickets from her employer. Shonda was also
indicted in 2008 for engaging in organized criminal activity involving the purchase of substances
to manufacture methamphetamine.
We find that the evidence is legally and factually sufficient to support the jury’s findings
on termination. James and Shonda both have an extensive history with the Department. The
record shows that James and Shonda both have engaged in domestic violence that has
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endangered the physical or emotional well-being of the children. Evidence that a parent has
engaged in abusive or neglectful conduct in the past permits an inference that the parent will
continue this behavior in the future. In re D.L.N., 958 S.W.2d 934, 941 (Tex. App.—Waco
1997, pet. denied). Shonda continues to struggle with substance abuse and has been arrested for
drug-related offenses. We overrule James’s and Shonda’s first issues on appeal.
In her fourth issue on appeal, Shonda argues that the trial court abused its discretion in
allowing drug test results into evidence. We review a trial court’s decision to admit or exclude
evidence for an abuse of discretion. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d
549, 558 (Tex. 1995); Allen v. Mancini, 170 S.W.3d 167, 172 (Tex. App.—Eastland 2005, pet.
den’d). We will reverse the decision of the trial court only if it acted arbitrarily, unreasonably, or
without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241-42 (Tex. 1985); Allen, 170 S.W.3d at 172.
On direct examination, Shonda testified that she had been “clean” since April 1, 2006.
The State asked Shonda, “Since September of 2005 to the present, how many times have you
taken and failed a drug test in which you tested positive for methamphetamine?” Shonda
responded without objection, “Once. I then turned around with my own money --.” The State
then asked, “How many times have you taken a test and the test showed positive?” Shonda
responded again without objection, “Once.” The State asked, “I know you say you didn’t take
it --.” Shonda’s attorney then objected as to hearsay, and the trial court instructed the State to
rephrase the question. The State asked Shonda, “[H]ow many times have you actually taken a
drug test and it showed positive for methamphetamine?” Shonda’s attorney objected that no
predicate had been laid, and the trial court sustained the objection. After further exchange,
Shonda again testified without objection that she had not passed all of the drug tests she had
taken. When asked specifically how many drug tests Shonda had “failed,” the trial court
sustained her attorney’s objection and allowed the State to rephrase. The State asked, “Out of all
of the drug tests that you have taken, how many times have you received a written piece of paper
saying that you failed?” The trial court overruled the objection, and Shonda stated that she was
“not sure.” Upon further questioning by the State without objection, Shonda stated that she had
failed more than two drug tests and possibly more than four.
Shonda initially testified without objection that she had tested positive for
methamphetamine. Therefore, Shonda failed to timely object to the admission of the drug test
results. TEX. R. APP. P. 33.1(a). A party must continue to object each time inadmissible
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evidence is offered. TEX. R. EVID. 103(a)(1). After stating her objections to the evidence,
Shonda later testified without objection that she had failed at least two drug tests. Moreover,
Dr. Bill Gustavus testified at the termination hearing without objection that Shonda tested
positive for methamphetamines four or five times. The general rule is that error in the admission
of evidence is deemed harmless and is waived if the objecting party subsequently permits the
same or similar evidence to be introduced without objection. Volkswagen of Am., Inc. v. Ramirez,
159 S.W.3d 897, 907 (Tex. 2004); Clayton v. Wisener, 190 S.W.3d 685, 699 (Tex. App.—Tyler
2005, no pet.).
Amanda Snow, supervisor at One Source Health Center and custodian of records,
testified that she performs and oversees drug screens. One Source collects the specimen, but
does not perform the test analysis. One Source receives a report from the lab with the analysis of
the drug test. The report from Shonda’s drug test was admitted over objection.
To be entitled to reversal due to the erroneous admission of evidence, an appellant must
not only show that the trial court erred in admitting the evidence but that the error was
reasonably calculated to cause and probably did cause the rendition of an improper verdict.
TEX. R. APP. P. 44.1; In re C.R., 263 S.W.3d 368, 370 (Tex. App.—Dallas 2008, no pet.). We
review the entire record and require the complaining party to demonstrate that the judgment turns
on the particular evidence admitted. In re C.R., 263 S.W.3d at 370. The jury heard considerable
evidence of Shonda’s drug use and her arrests for drug use. Any error in admitting the drug test
reports was harmless. Rule 44.1; In re C.R., 263 S.W.3d at 370. We overrule Shonda’s fourth
issue on appeal.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
CHIEF JUSTICE
May 13, 2010
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
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