in the Interest of S.J.T.B.

In The

Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-12-00098-CV
____________________

IN THE INTEREST OF S.J.T.B.
_____________________________________________________________________

On Appeal from the County Court at Law
Polk County, Texas
Trial Cause No. PC04927
_____________________________________________________________________

MEMORANDUM OPINION

Don and Stephanie,1 S.J.T.B.’s paternal uncle and aunt, (“petitioners”) filed a

petition seeking custody of S.J.T.B., in which the Texas Department of Family and

Protective Services (the “Department”) became involved and in which Joseph and

Kimberly, S.J.T.B.’s maternal grandparents, (“intervenors”) filed a petition in

intervention. A jury found, by clear and convincing evidence, that the parental rights of

Daniealle and Leslie (the “parents”) should be terminated, the Department should be

named sole managing conservator, and no possessory conservator should be named. In

three appellate issues, the parents challenge the admission of certain evidence, the legal

1
For the sake of clarity, the parties and other principals will be referred to in the
following manner: petitioners – Don and Stephanie; intervenors – Joseph and Kimberly;
mother of the child – Daniealle; father of the child – Leslie.
1
and factual sufficiency of the evidence to support termination, and the effectiveness of

their trial attorneys. In four appellate issues, petitioners challenge the sufficiency of the

evidence to support the jury’s conservatorship findings.2 We affirm the trial court’s

judgment.

Factual Background

Investigator Lou Liles testified that, in 2003, the Department investigated

allegations of sexual abuse by Leslie and removed Leslie’s three children. Liles testified

that two of the children were seen hiding food. A home study of Stephanie’s home was

approved and the children were temporarily placed with her. The Department was unable

to determine that the alleged sexual abuse occurred, but reported the information to law

enforcement. Leslie relinquished his parental rights to the three children.

In 2008, the Department investigated allegations of neglectful supervision by

Daniealle, based on claims of mental health, instability, and drug abuse, regarding

Daniealle’s two daughters. The Department found neglectful supervision and placed the

two children with intervenors, Daniealle relinquished her parental rights, and intervenors

adopted the children.

In 2010, the Department investigated allegations that Daniealle dropped S.J.T.B.

and burned S.J.T.B. with a cigarette, but the Department determined that these were

accidents. Liles testified that the Department also investigated allegations of neglectful

2
Intervenors did not appeal from the trial court’s judgment.

2
supervision, but closed its investigation once the trial court became involved. Daniealle

and Stephanie subsequently engaged in a verbal and physical altercation in S.J.T.B.’s

presence. The Department reopened its investigation because of allegations that S.J.T.B.

was injured during the altercation, but Liles testified that S.J.T.B. was not injured, and the

Department was unable to determine that neglectful supervision occurred. Liles testified

that the Department was concerned by the fact that S.J.T.B. was present during the

altercation.

Caseworker Jill Dunaway testified that, after petitioners filed suit, S.J.T.B. was

placed with petitioners via a court order and that petitioners were pleasant, concerned

about S.J.T.B., and interested in taking steps to keep S.J.T.B. Dunaway testified that

communications with petitioners soured when the Department placed S.J.T.B. in foster

care after learning that petitioners had allowed the parents to live in their home. When

the Department later returned S.J.T.B. to petitioners, communications improved unless

the parents or petitioners disapproved of something Dunaway said or did.

Dunaway testified that the parents and petitioners have a tense relationship. She

testified that the parents originally wanted S.J.T.B. to be placed in foster care rather than

with petitioners. She testified that the parents feared petitioners wanted permanent

custody of S.J.T.B. and did not want him returned to his parents. Dunaway testified that

the parents and petitioners accused each other of using drugs. Daniealle admitted making

a statement, albeit out of anger, that Stephanie would never have S.J.T.B. Despite their

3
disagreements, Daniealle testified that petitioners have been there whenever she or

S.J.T.B. needed anything and that she has petitioners’ love, support, and help. Stephanie

testified that she and Daniealle have reconciled.

Daniealle testified that petitioners have been S.J.T.B.’s primary caretakers because

she and Leslie could not provide for S.J.T.B. According to Daniealle, she and Leslie

have lived in different locations and were often unemployed. Leslie receives social

security. Daniealle testified that they move frequently because they have a fixed income.

Dunaway testified that Leslie said he cannot work because he has a heart problem and a

pacemaker. Daniealle explained that she struggles to hold a job because she often

becomes angry and quits. At the time of trial, the parents lived in a mobile home, but

Daniealle explained that they are frequently on the road operating their business.

Daniealle admitted that there are at least two warrants out for her arrest and that

she has been hospitalized for mental health issues, diagnosed with bipolar disorder, and

prescribed medication. Daniealle also admitted abusing illegal and prescription drugs,

using drugs with Leslie, and receiving drugs from Leslie. Daniealle denied ever being so

intoxicated that she could not care for herself or S.J.T.B. and she denied using drugs

around S.J.T.B. She testified that she no longer has a problem with prescription drugs

and that her bipolar medication is currently regulated.

Regarding the parents’ relationship, Stephanie testified that Leslie is controlling

and treats Daniealle “like a dog[.]” Counselor Stephanie Miller testified that Daniealle

4
accused Leslie of being verbally abusive and controlling. Daniealle testified that she

once left Leslie because they were not “getting along[,]” but that she returned to Leslie

after he filed a petition seeking custody of S.J.T.B. During the termination proceedings,

Daniealle again left Leslie and began living with intervenors. Miller testified that

Daniealle appeared to be doing better, had a job, had an elevated mood, and looked

healthier. Dunaway testified that Daniealle worked, helped with the children, and

seemed to be doing well. Joseph, Daniealle’s father, testified that Leslie visited

Daniealle, which caused “trauma and drama” because Daniealle wanted nothing to do

with Leslie, Daniealle and Leslie argued, and Joseph had to leave work to calm the

situation. Daniealle testified that Leslie made excessive telephone calls and accused

Daniealle of stealing some of his prescription medication. Dunaway testified that

Daniealle eventually returned to Leslie, telling Dunaway that she wanted to make the

relationship work and she was doing what was best for her. Daniealle testified that she

left intervenors’ home because she partied too much and Leslie’s family treated her

better. Miller testified that Daniealle appeared to backslide when she returned to Leslie.

Given the 2003 allegations against Leslie, Daniealle testified she is unsure about their

future together.

Dunaway opined that S.J.T.B. is in danger in his parents’ home. She explained

that the parents failed to demonstrate the changes in behavior desired by the Department,

were never stable, and did not do what was needed to regain custody of S.J.T.B.

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Daniealle admitted that she cannot currently care for S.J.T.B., but she explained that she

always sought help by taking her children to people who could care for them.

Dunaway, however, testified that the parents endangered S.J.T.B. by placing him

with petitioners because petitioners have a history with the Department. Liles testified

that, in 2004, the Department reached a “reason to believe” disposition regarding

allegations of neglectful supervision by Stephanie. In 2006 and 2009, the Department

ruled out allegations of physical abuse of Stephanie’s teenage daughter D.H. Regarding

the 2009 incident, Stephanie explained that D.H. failed to come home on time, that she

had difficulty locating D.H. and contacted officers, that D.H. became angry when found

and pushed Stephanie so hard that Stephanie fell, and that Stephanie spanked D.H. with a

leather belt. Linda McCarty, Stephanie’s former mother-in-law, testified that D.H. was

injured, went to a SAAFE house, and sought a protective order against Stephanie. Liles

testified that Stephanie’s decision to spank D.H. was inappropriate discipline, but not

physical abuse.

Additionally, Daniealle testified to an instance when Stephanie lost her temper

with her step-daughter, which upset S.J.T.B. and required Daniealle to remove S.J.T.B.

from the room. Don testified to an instance when another vehicle struck his vehicle and

the other driver threatened Stephanie, which prompted Don to kick in the other driver’s

vehicle door. D.R. testified that he felt remorseful and bought the other driver a new

vehicle door. McCarty testified that she was not allowed to see her grandchildren if

6
Stephanie was angry with McCarty and that she is not allowed much contact with her

youngest granddaughter.

Miller and conservatorship supervisor Amanda Jackson recommended termination

of the parents’ rights. Miller explained that there is dysfunction, violence, and drug

abuse in the parents’ home and that, because past behavior is the best predictor of future

behavior, it is not realistic to believe that significant change will occur. Joseph believed

the parents’ rights should be terminated because they cannot financially, physically, or

mentally care for S.J.T.B.

Daniealle testified that she has a good relationship with S.J.T.B. and that

termination would adversely affect S.J.T.B. Daniealle wanted S.J.T.B. to be placed with

petitioners. She believed petitioners would provide for S.J.T.B.’s safety, emotional

needs, physical needs, medical care, and stability. She knew of no reason why

petitioners’ residence would be inappropriate for S.J.T.B., saw no inability of petitioners

to care for S.J.T.B., and testified that petitioners have spent their own money to care for

S.J.T.B. Daniealle testified that S.J.T.B. has spent nearly his entire life with petitioners,

is comfortable, happy, and loves petitioners, and that petitioners love, provide for, and

play with S.J.T.B., provide a safe environment for S.J.T.B., and include the parents in

S.J.T.B.’s life. Daniealle anticipated having more visitation if S.J.T.B. was placed with

petitioners, and she believed petitioners would be accommodating should she someday be

able to care for S.J.T.B. She testified that if S.J.T.B. would be happy and safe and could

7
be with petitioners, she would even cease contact with him if so directed. Daniealle

concluded that S.J.T.B. wants to be with petitioners and would be happiest with

petitioners.

Stephanie testified that Daniealle and S.J.T.B. have a “unique bond[,]” S.J.T.B.

loves his parents, and termination would negatively affect S.J.T.B. Stephanie believed

that, with help, the parents could be joint managing conservators, but she did not believe

they could take care of him. She and Don believed that S.J.T.B. should be placed with

their family. Don testified that he loves S.J.T.B. like a son, he enjoys being with

S.J.T.B., and S.J.T.B. is cared for, provided for, and happy. Stephanie testified that she

treats S.J.T.B. like her own child, her family loves S.J.T.B., she takes S.J.T.B. to the

doctor, tucks him in at night, comforts him, and provides for him, S.J.T.B. and Don are

“best friends,” and S.J.T.B. participates in family activities. She testified that S.J.T.B. is

happy and that her home is the only one he has ever known. Don testified that he and

Stephanie sought treatment for S.J.T.B.’s hearing problems and that, after three surgeries

and speech therapy, S.J.T.B. is doing well. Stephanie testified that she never sought

financial help with S.J.T.B. and did not need monetary support. Don testified that he is

willing to care for S.J.T.B. indefinitely, and that his home is the safest place for S.J.T.B.

Petitioners testified that they would keep the parents away from S.J.T.B. if so directed.

Stephanie testified that it would be devastating if S.J.T.B. was not placed with her family.

8
 Petitioners’ friends believed that petitioners were an appropriate placement for

S.J.T.B., and they could identify no reasons why petitioners should not have custody of

S.J.T.B. or would not be good parents. Darrell Longino testified that Don is a good

father and that Stephanie appropriately handled the situation with D.H. Carey Cochran

testified that S.J.T.B. is content, cared for, neat, and clean. Dr. Joseph Goin testified that

he has treated Stephanie’s children and that petitioners brought S.J.T.B. for regular

checkups.

Dunaway testified the Department never approved petitioners as a placement.

Jackson testified that, because of petitioners’ history with the Department, the

Department did not conduct a home study, a home study would not have been approved,

and the Department did not recommend placement with petitioners. She explained that

S.J.T.B. is at a greater risk of harm in petitioners’ home. She testified that if the jury

placed S.J.T.B. with petitioners, petitioners would not qualify for any assistance from the

Department because of their history. Dunaway did not believe S.J.T.B. was currently in

danger in petitioners’ home, but she perceived a risk of endangerment because of

petitioners’ history and she did not believe that a child should be placed in a home with

people who have such a history.

Dunaway believed that petitioners love S.J.T.B. and would provide for him, but

she was concerned with the lack of discipline and boundaries in petitioners’ home. She

explained that she saw no corrective measures taken when S.J.T.B. pushed the rules or

9
boundaries. Patricia Eeds, S.J.T.B.’s guardian ad litem, believed petitioners love

S.J.T.B., but she expressed concern that Leslie would have too much access to S.J.T.B. if

he were placed with petitioners, even if Leslie’s rights were terminated. Miller testified

that if S.J.T.B. is placed with petitioners and his parents are allowed to come in and out

of his life, he “will never have a day’s peace[]” because there will always be chaos and

fighting. Miller believed that limiting the parents’ contact with S.J.T.B. would be

challenging for petitioners. Liles testified that the Department seemed to always be

receiving calls and conducting investigations and that the parents and petitioners were an

unending source of chaos. Jackson explained that the better option for the child, in terms

of best interest, is the “more peaceful environment[.]”

Based on an approved home study of intervenors’ home and the fact that

S.J.T.B.’s two sisters reside with intervenors, Jackson recommended appointment of the

Department as sole managing conservator, no appointment of a possessory conservator,

and eventual placement with intervenors. Miller agreed that S.J.T.B. should be placed

with intervenors. She explained that S.J.T.B. needs long-term stability, an environment

free from drugs and family violence and, if possible, to grow up with his siblings.

According to Dunaway, Daniealle once supported intervenors as a potential

placement, but changed her mind when she returned to Leslie. Daniealle explained that

this change of heart was caused by a feeling that love is not the reason intervenors want

S.J.T.B. Daniealle testified that she does not want intervenors to raise S.J.T.B. Daniealle

10
explained that during her childhood, Joseph did not know how to raise her, slapped her,

yelled at her, and disciplined her with a belt when she slit her wrists. Daniealle testified

that she and Joseph have never had a good relationship, that she does not have a good

relationship with Kimberly, and that intervenors have often held her two daughters over

her head.

The record indicates that Joseph is also not close to his other children, except for

one, and that his other children, like Daniealle, have struggled with drug use. He

admitted that he previously banned Daniealle from his home and that he does not allow

her to see her daughters when she is using drugs. Joseph testified that he loves Daniealle

and has never given up on her. Miller testified that during her counseling sessions with

Joseph, he expressed a desire to have more contact with Daniealle and he expressed

concern that Leslie’s family was inhibiting contact. Daniealle testified that Leslie’s

family encouraged her to mend her relationship with Joseph. Nevertheless, Daniealle

testified that she did not want S.J.T.B. to have the same experiences that she had.

Dunaway testified that intervenors had court-ordered visitation, but that petitioners

and intervenors lodged complaints against each other when conducting exchanges.

Dunaway testified that petitioners tended to delay the exchanges and that Stephanie cried,

which upset S.J.T.B. Both parties complained about the other delivering S.J.T.B. with a

physical ailment, such as a cold, diaper rash, or a boil. Joseph testified that petitioners

refused to provide them with S.J.T.B.’s Medicaid card. Don testified that intervenors

11
made false complaints against petitioners. Stephanie testified that she began carrying a

recorder for her family’s protection. Daniealle testified that intervenors helped her

prepare an email to their attorney, but manipulated the email to reflect poorly on

petitioners.

Joseph admitted that S.J.T.B. initially cried when he left petitioners, but he

testified that exchanges became easier and that S.J.T.B. played once he arrived at

intervenors’ home. Stephanie testified that S.J.T.B. is still scared and asks to go home.

Daniealle testified that S.J.T.B. appears cared for by intervenors, but she testified that

S.J.T.B. was not happy with intervenors. Don testified that S.J.T.B. is not happy with

intervenors and is in danger in intervenors’ home. He claimed that Joseph associated

with a known drug dealer and did nothing when Daniealle told Joseph she had been

sexually abused by her uncle. Dunaway testified that S.J.T.B. seemed happy with

intervenors, played, and had fun with intervenors and his sisters. She saw no indication

that S.J.T.B. was unhappy with intervenors. Dunaway testified that S.J.T.B. is not in

physical or emotional danger in intervenors’ home. Miller testified that the environment

in intervenors’ home appears consistent, calm, and healthy. Eeds testified that the

environment seemed happy and S.J.T.B.’s sisters are loving and happy.

Petitioners testified they could cooperate with intervenors if S.J.T.B. was placed

with their family and intervenors received visitation rights. Joseph wanted S.J.T.B. to

have a relationship with petitioners, but he believed that it would be difficult for him to

12
visit S.J.T.B. without a court order. Jackson testified it would be unhealthy for

petitioners and intervenors to be named joint managing conservators, given that the two

families have not demonstrated an ability to get along. She testified that, if S.J.T.B. was

placed with intervenors, she would encourage intervenors to allow petitioners to have a

relationship with S.J.T.B., provided there is no negative impact on S.J.T.B.

Legal and Factual Sufficiency

In issue two, the parents contend the evidence is legally and factually insufficient

to support the termination of their parental rights. In issues one through four, petitioners

contend that the evidence is legally and factually insufficient to support the jury’s

findings regarding conservatorship.

We first address the parents’ sufficiency challenge. To challenge the factual

sufficiency of the evidence, the appealing party must have first asserted the point in a

motion for new trial. Tex. R. Civ. P. 324(b)(2); In the Interest of M.S., 115 S.W.3d 534,

547 (Tex. 2003). To preserve a legal sufficiency challenge for appeal, the appealing

party must have asserted the point by (1) a motion for instructed verdict, (2) a motion for

judgment notwithstanding the verdict, (3) an objection to the submission of the issue to

the jury, (4) a motion to disregard the jury’s answer to a vital fact issue, or (5) a motion

for new trial. Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex. 1991).

Although the record contains Leslie’s motion for new trial raising sufficiency

challenges, the record does not indicate that Daniealle filed a proper motion or lodged a

13
proper objection raising her sufficiency challenges. See Tex. R. Civ. P. 324(b)(2); see

also M.S., 115 S.W.3d at 547; Cecil, 804 S.W.2d at 510-11. Appointed counsel’s

unexcused failure to preserve a valid sufficiency point for appeal may constitute

ineffective assistance of counsel in a termination case. In the Interest of C.T., No. 09-11-

00694-CV, 2012 Tex. App. LEXIS 2485, at *3 (Tex. App.—Beaumont Mar. 29, 2012, no

pet.) (mem. op.) (addressing sufficiency issues in a termination case when issues were not

preserved and no ineffective assistance claim was raised). Daniealle does not argue

ineffective assistance of counsel on this basis and counsel is not automatically ineffective

for failing to preserve the issues. See id. If counsel could have reasonably believed the

evidence to be sufficient, counsel’s performance does not fall below an objective

standard of reasonableness merely because the verdict was not challenged. Id.

Under legal sufficiency review, we review all the evidence in the light most

favorable to the finding to determine whether “a factfinder could reasonably form a firm

belief or conviction about the truth” of the allegations. In the Interest of J.F.C., 96

S.W.3d 256, 266 (Tex. 2002). We assume that the factfinder resolved disputed facts in

favor of its finding if a reasonable factfinder could and we disregard all evidence that a

reasonable factfinder could have disbelieved or found to have been incredible. Id. If no

reasonable factfinder could form a firm belief or conviction that the matter that must be

proven is true, the evidence is legally insufficient. Id.

14
 Under factual sufficiency review, we must determine whether the evidence is such

that a factfinder could reasonably form a firm belief or conviction about the truth of the

allegations. Id. We give due consideration to evidence that the factfinder could

reasonably have found to be clear and convincing. Id. We consider whether disputed

evidence is such that a reasonable factfinder could not have resolved that disputed

evidence in favor of its finding. Id. “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,

the evidence is factually insufficient.” Id.

In this case, the jury could terminate the parents’ rights if it found that they: (1)

knowingly placed or knowingly allowed S.J.T.B. to remain in conditions or surroundings

which endanger his physical or emotional well-being; or (2) engaged in conduct or

knowingly placed S.J.T.B. with persons who engaged in conduct which endangers his

physical or emotional well-being. See Tex. Fam. Code. Ann. § 161.001(1)(D), (E) (West

Supp. 2012). Under section 161.001(1)(D), a parent’s conduct in the home can create an

environment that endangers the child’s physical and emotional well-being. In the Interest

of J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). “The factfinder

may infer from past conduct endangering the child’s well-being that similar conduct will

recur if the child is returned to the parent.” In the Interest of M.R.J.M., 280 S.W.3d 494,

502 (Tex. App.—Fort Worth 2009, no pet.). Regarding S.J.T.B.’s best interest, we

15
consider a non-exhaustive list of factors: (1) desires of the child; (2) emotional and

physical needs of the child now and in the future; (3) emotional and physical danger to

the child now and in the future; (4) parental abilities of the individuals seeking custody;

(5) programs available to assist these individuals to promote the best interest of the child;

(6) plans for the child by these individuals or by the agency seeking custody; (7) stability

of the home or proposed placement; (8) acts/omissions of the parent which may indicate

that the existing parent-child relationship is not proper; and (9) any excuse for the

acts/omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see

Tex. Fam. Code. Ann. § 263.307(b) (West 2008).

The jury heard testimony that both parents have a history of substance abuse, there

are warrants out for Daniealle’s arrest, and both parents have a history with the

Department which resulted in the removal of their children. The record contains

evidence that the parents have been unable to care for S.J.T.B. and were unable to care

for S.J.T.B. at the time of trial. The jury also heard evidence that the parents have a

tumultuous relationship. Although Daniealle testified that she was unsure of the

relationship’s future, the jury also heard evidence that Daniealle has returned to the

relationship on more than one occasion and even left a situation in which she had begun

to improve to pursue her relationship with Leslie because she believed it to be in her best

interest. The jury heard Miller’s testimony that Daniealle subsequently appeared to

regress, that a relationship between Daniealle and Leslie will always be unhealthy, and

16
that it is unrealistic to believe that significant change will occur because past behavior is

the best predictor of future behavior.

The jury heard evidence that S.J.T.B.’s parents have an unstable home and

inconsistent employment, and that S.J.T.B. is in danger in their home. Miller, Liles, and

Jackson testified to the chaos that S.J.T.B.’s parents have caused in his life and explained

his need for a peaceful and stable environment. Given the dysfunctional and abusive

atmosphere of the parents’ home, the parents’ instability, and the parents’ inability to

provide for S.J.T.B., several witnesses testified in favor of termination.

Other witnesses testified against termination. The jury heard testimony that

S.J.T.B. and his parents love each other and that termination would negatively impact

S.J.T.B. Stephanie testified that the parents could care for S.J.T.B. if they had help. The

jury also heard Daniealle’s testimony that prescription drugs no longer pose a problem

for her, she never suffered from intoxication that prevented her from being able to care

for herself or S.J.T.B., she never used drugs around S.J.T.B., and her medication is

regulated. She explained that she left intervenors’ home, not because of Leslie, but

because she needed the support of Leslie’s family. S.J.T.B. was too young to express his

desires at trial. The record contains evidence that the parents and S.J.T.B. have a good

relationship, but also contains evidence that a continued relationship would not be in

S.J.T.B.’s best interest.

17
 The jury could reasonably conclude that the conduct of Daniealle and Leslie

created an environment that endangers S.J.T.B.’s physical and emotional well-being and

could infer from this past endangering conduct that similar conduct would recur if

S.J.T.B. were returned to his parents. See M.R.J.M., 280 S.W.3d at 502; see also J.T.G.,

121 S.W.3d at 125. The jury could reasonably have formed a firm belief or conviction

that Daniealle and Leslie knowingly placed or knowingly allowed S.J.T.B. to remain in

conditions or surroundings which endangered his physical or emotional well-being. See

Tex. Fam. Code Ann. § 161.001(1)(D); see also In the Interest of C.A.C., No. 09-10-

00477-CV, 2011 Tex. App. LEXIS 3385, at *2 (Tex. App.—Beaumont May 5, 2011, no

pet.) (mem. op.) (A judgment will be affirmed if any one of the grounds is legally and

factually sufficient and the best interest finding is also legally and factually sufficient.).

Additionally, “the 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). The jury could reasonably conclude that Daniealle and Leslie were unable to

provide a safe environment for S.J.T.B. The jury could reasonably have formed a firm

belief or conviction that termination of Daniealle’s and Leslie’s parental rights was in

S.J.T.B.’s best interest. See id. §§ 161.001(2), 263.307(b); see also J.F.C., 96 S.W.3d at

266; Holley, 544 S.W.2d at 371-72. We conclude that the Department established, by

clear and convincing evidence, that Daniealle and Leslie committed the predicate act

18
enumerated in section 161.001(1)(D) and that termination is in S.J.T.B.’s best interest.

See Tex. Fam. Code Ann. § 161.001. We overrule the parents’ second issue.

We next address petitioners’ sufficiency issues.3 Conservatorship is governed by a

preponderance-of-the-evidence standard and is reviewed under ordinary sufficiency

standards. In the Interest of J.A.J., 243 S.W.3d 611, 616, 617 n.5 (Tex. 2007). The legal

sufficiency standard requires us to consider “whether the evidence at trial would enable

reasonable and fair-minded people to reach the verdict under review.” City of Keller v.

Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We view the evidence in the light most

favorable to the verdict, credit favorable evidence if reasonable jurors could, and

disregard contrary evidence unless reasonable jurors could not. Del Lago Ptnrs. v. Smith,

307 S.W.3d 762, 770 (Tex. 2010). The factual sufficiency standard requires us to

consider and weigh all of the evidence, and we may set aside the verdict only if the

evidence is so weak or the finding is so against the great weight and preponderance of the

evidence that it is clearly wrong and unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237,

242 (Tex. 2001).

3
In their brief, petitioners mention that the Department failed to meet its burden of
proof to support removal of S.J.T.B. from petitioners. See Tex. Fam. Code Ann. §
262.205 (West 2008) (When the child is not in the possession of a governmental entity,
under certain circumstances, the trial court may remove the child from the caretaker after
an adversarial hearing.). The Department contends that this argument is not preserved
and should be brought via a petition for writ of mandamus. We construe petitioners’
appeal as challenging the jury’s findings regarding conservatorship, which the trial court
incorporated into its order of termination.
19
 As previously stated, S.J.T.B. was not old enough to express his desires at trial.

The jury heard Daniealle’s opinion that S.J.T.B. was not happy with intervenors, but

wants to be with petitioners and would be happiest with petitioners. The record also

contains evidence that S.J.T.B. loves petitioners, is happy with petitioners, has bonded

with Don in particular, and participates in family activities with petitioners. The jury

heard evidence that petitioners brought S.J.T.B. for regular medical checkups and sought

successful treatment for S.J.T.B.’s hearing problem. Daniealle and Stephanie testified

that petitioners could meet S.J.T.B.’s emotional, physical, and financial needs.

Petitioners’ friends testified that petitioners are good parents and take care of

S.J.T.B. Dunaway testified that petitioners love and provide for S.J.T.B. and she did not

believe that S.J.T.B was currently in danger in petitioners’ home. Daniealle did not

believe that a parent-child relationship between S.J.T.B. and petitioners would be

inappropriate. Don testified he is prepared to care for S.J.T.B. and keep him safe, which

includes keeping the parents away from S.J.T.B. if so directed. The jury heard testimony

that S.J.T.B. has spent a significant portion of his life with petitioners and that petitioners

love S.J.T.B. like a son. The record also demonstrates that Stephanie’s home previously

passed a home study in an unrelated case.

The jury also heard evidence of the discord between the parents and petitioners,

including allegations of drug abuse against each other, the altercation between Stephanie

and Daniealle that occurred in S.J.T.B.’s presence, and the parents’ concerns that

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petitioners wanted S.J.T.B. and did not want him returned to his parents. The record

contains evidence of petitioners’ history with the Department, which Dunaway opined

created a risk of endangerment to S.J.T.B. The jury also heard testimony of petitioners’

conflicts with other individuals. Witnesses expressed concern regarding a lack of

discipline and boundaries in petitioners’ home, the parents’ potential access to S.J.T.B. if

he were placed with petitioners, and the chaos that the relationship between the parents

and petitioners has caused to S.J.T.B.

Miller and Jackson testified that the better option for S.J.T.B. is an environment

with stability and peace. Witnesses testified that petitioners had never been approved as

a placement and that, because of petitioners’ history, the Department would not have

approved a home study, the Department did not recommend placement with petitioners,

and petitioners would not qualify for any assistance from the Department.

As the sole judge of the weight and credibility of the evidence, the jury was

entitled to resolve any conflicts in the evidence and choose which testimony to believe.

See City of Keller, 168 S.W.3d at 819; see also Golden Eagle Archery, Inc. v. Jackson,

116 S.W.3d 757, 761 (Tex. 2003). In doing so, the jury could reasonably conclude that

naming the Department as sole managing conservator and not naming petitioners as

possessory conservators was in the best interest of S.J.T.B. See Del Lago Ptnrs., 307

S.W.3d at 770; see also City of Keller, 168 S.W.3d at 822, 827. The evidence supporting

the verdict is not so weak, nor so against the great weight and preponderance of the

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evidence, as to render the jury’s findings clearly wrong and unjust. See Dow Chem. Co.,

46 S.W.3d at 242. Because the evidence is legally and factually sufficient to support the

jury’s conservatorship findings, we overrule petitioners’ four appellate issues.

Evidentiary Issues

In issue one, the parents contend that the trial court abused its discretion by

admitting a copy of the Department’s original petition into evidence because that exhibit

contained a copy of Liles’s affidavit and a copy of the trial court’s previous emergency

order for protection. Leslie also challenges admission of Liles’s testimony regarding his

former history with the Department, i.e., allegations of sexual abuse. We review a trial

court’s evidentiary rulings for abuse of discretion. In the Interest of J.P.B., 180 S.W.3d

570, 575 (Tex. 2005).

When the exhibit was admitted into evidence, Daniealle’s counsel and Leslie’s

counsel both stated, “No objections.” To preserve error, the complaining party must have

timely objected and obtained a ruling on the objection. Tex. R. App. P. 33.1(a). When a

party affirmatively asserts that he or she has “no objection” to the admission of

complained-of evidence, any error in the admission of the evidence is waived. Tex. Dep’t

of Transp. v. Pate, 170 S.W.3d 840, 850 (Tex. App.—Texarkana 2005, pet. denied).

Having affirmatively stated that they had no objection to admission of the exhibit into

evidence, the parents have failed to preserve their complaint regarding admission of

Liles’s affidavit. See id.; see also Tex. R. App. P. 33.1(a). Likewise, the record indicates

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that Leslie did not object to the portions of Liles’s testimony of which he now complains

on appeal. His complaint is not preserved for our review. See Tex. R. App. P. 33.1(a).

The parents were not required to object to admission of the trial court’s order to

preserve their complaint that admission of the order amounts to impermissible testimony

by the trial court.4 See Tex. R. Evid. 605. The presiding trial judge may not testify in the

trial as a witness. Id. Admission of an order which contains findings based upon pretrial

evidence by the same judge presiding over the termination proceeding could be a form of

judicial influence that is no less proscribed than judicial testimony, much like a judicial

comment on the weight of the evidence. In the Interest of M.S., 115 S.W.3d 534, 538

(Tex. 2003).

In this case, the trial court’s pre-trial order contained numerous findings, including

a finding that S.J.T.B. was in immediate danger in his parents’ home. Assuming, without

deciding, the trial court abused its discretion by admitting the order into evidence, the

parents fail to demonstrate how admission of the order caused harm. The record does not

indicate that the Department relied on or emphasized the trial court’s previous findings.

Additionally, the record contains sufficient evidence from which the jury could find

endangerment by the parents to support its termination findings. We cannot say that, but

for admission of the trial court’s pre-trial order, the jury would have reached a different

4
The parents contend the trial court made other comments on the weight of the
evidence, but the record does not indicate that the parents objected at trial. See Tex. R.
App. P. 33.1(a).
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conclusion. See M.S., 115 S.W.3d at 542. Any error in admission of the order was

harmless. We overrule the parents’ first issue.

Ineffective Assistance

In issue three, the parents contend that they received ineffective assistance of

counsel at trial. To establish ineffective assistance, a client must show that: (1) counsel’s

performance was deficient; and (2) the deficient performance prejudiced the client, such

that the client was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The client must show that counsel’s

representation fell below an objective standard of reasonableness and there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Id. at 688, 694. Our review of counsel’s

performance is highly deferential, and we presume that counsel’s conduct falls within the

range of reasonable professional assistance, including that of strategy or professional

opinion. Id. at 689; M.S., 115 S.W.3d at 549. We consider all circumstances surrounding

the case and primarily focus on whether counsel performed in a “reasonably effective”

manner. M.S., 115 S.W.3d at 545.

Leslie contends that he received ineffective assistance of counsel because his trial

counsel sought and obtained a motion in limine regarding allegations of sexual abuse by

Leslie, but failed to object when such evidence was admitted at trial and offered no

evidence in rebuttal. Daniealle complains that her trial counsel failed to file a motion in

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limine regarding evidence of her drug use, mental illness, and instability preceding

S.J.T.B.’s birth, failed to object when such evidence was admitted at trial, and failed to

offer rebuttal evidence.

The record is silent regarding the reasons or strategies behind the actions of the

parents’ trial attorneys. See Walker v. Tex. Dep’t of Family & Protective Servs., 312

S.W.3d 608, 623 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“We may not

speculate to find trial counsel ineffective when the record is silent regarding counsel's

reasons for his actions.”). Moreover, the parents cannot demonstrate that, but for the

alleged errors by their counsel, the result of the termination proceeding would have been

different. See Strickland, 466 U.S. at 694. Even without the evidence of which Leslie

and Daniealle complain, the record contains other evidence of endangerment to support

the jury’s verdict against them. See In the Interest of B.L.D., 113 S.W.3d 340, 347 (Tex.

2003) (Allegations of endangerment permit termination based on each parent’s knowing

exposure of the child to one another’s endangering conduct.); M.R.J.M., 280 S.W.3d at

502 (Inappropriate or abusive conduct by a person with whom a child is compelled to

associate on a regular basis in his home is a part of the child’s conditions or

surroundings.); J.T.G., 121 S.W.3d at 125; Edwards v. Tex. Dep’t of Protective &

Regulatory Servs., 946 S.W.2d 130, 138 (Tex. App.—El Paso 1997), overruled on other

grounds, J.F.C., 96 S.W.3d at 267 n.39 (One parent’s drug-related endangerment of the

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child may be imputed to the other parent.). Under these circumstances, the parents are

unable to satisfy both Strickland prongs; therefore, we overrule their third issue.

Having overruled the parents’ three appellate issues and petitioners’ four appellate

issues, we affirm the trial court’s judgment.

AFFIRMED.

________________________________
STEVE McKEITHEN
Chief Justice

Submitted on September 25, 2012
Opinion Delivered November 15, 2012
Before McKeithen, C.J., Gaultney and Kreger, JJ.

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