in the Interest of S.I.-M.G. and S.B.G.-R., the Children

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-12-00141-CV

In the Interest of S.I.-M.G. and § From the 431st District Court
S.B.G.-R., the Children
§ of Denton County (2010-11061-16)

§ November 15, 2012

§ Opinion by Justice Walker

JUDGMENT

This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.

SECOND DISTRICT COURT OF APPEALS

By_________________________________
Justice Sue Walker
 COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-12-00141-CV

IN THE INTEREST OF S.I.-M.G.
AND S.B.G.-R., THE CHILDREN

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FROM THE 431ST DISTRICT COURT OF DENTON COUNTY

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MEMORANDUM OPINION1

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I. INTRODUCTION

Appellant Mother appeals the judgment following a jury trial in which her

parental rights to S.I.-M.G. and S.B.G.-R. were terminated. In five issues, Mother

argues that the trial court erred by failing to include her proposed jury instruction

to disregard the wealth of the parties, that the trial court erred by including jury

questions on section 161.001(1)(D) and (E) endangerment grounds because

1
See Tex. R. App. P. 47.4.

2
there was no evidence to support them, that there was no evidence that Mother

had failed to complete the services on her service plan, and that the attorney ad

litem had failed to present S.I.-M.G.’s legal position to the trial court. We will

affirm.

II. FACTUAL BACKGROUND

The voluminous reporter’s record, which includes over 2,000 pages of

testimony and six volumes of exhibits, reveals a history of drug abuse that has,

unfortunately, plagued Mother and her family for decades. Because the appeal

can be disposed of based on Mother’s conduct and because the sufficiency of

the evidence to support the best interest finding is not challenged, the facts set

forth below focus on Mother’s conduct.

A. Mother’s Upbringing

Mother and her twin brother started living with their grandmother when

they were four months old because their mother had drug and alcohol issues,

and their father had drug issues. After Mother’s grandmother died when Mother

was a teenager, Mother lived with her uncle off and on. Mother attempted

suicide around age sixteen. Mother admitted to her uncle that she had used

drugs. The uncle testified that Mother’s mother’s addiction problems had

affected her ability to parent Mother and that he was fearful that Mother would

experience the same problems because of her own addiction.

3
 B. Mother’s Relationship with Paul and Her Criminal Background

Mother dated Paul for a year before she became pregnant with S.I.-M.G. at

age eighteen. Paul was verbally and emotionally abusive to Mother after he

started taking methamphetamine and abusing nitrous oxide. Paul told Mother

that she had to steal money for him. Mother feared Paul because he had

previously hurt her ―extremely badly,‖ requiring her to be sent to the hospital. So

Mother wielded a pocket knife that Paul had provided and robbed a woman with

her seven-year-old son at an ATM. Mother also robbed an older woman at

NorthPark Mall. Mother was arrested for two counts of aggravated robbery and

placed in jail.2

C. First Removal of S.I.-M.G.

While Mother was in jail, Steve Buchanan, a detective with the Denton

Police Department who investigated drug-endangered children cases, performed

a welfare check at S.I.-M.G.’s grandmother’s home on January 28, 2008,3

because someone had called and reported that S.I.-M.G. had missed school for

a few days. The grandmother told him that she did not have transportation to

2
Prior to her arrest on the two aggravated robbery charges, Mother had
been convicted of possession of marijuana and DWI.
3
Detective Buchanan noted that a welfare concern call had also come in on
January 24, 2008.

4
take S.I.-M.G. to school and that she was caring for S.I.-M.G. because Mother

was in jail.4

Detective Buchanan testified that he went back to S.I.-M.G.’s

grandmother’s house on February 19, 2008, because he had received a CPS

case on S.I.-M.G. and the CPS report contained allegations that the grandmother

was a prescription drug addict. The grandmother was talking very fast and was

jumping from subject to subject without being asked any questions; she was

visibly under the influence of drugs. The grandmother told Detective Buchanan

that she was taking Lortab and hydrocodone, and he was able to view the

bottles. Each of the two bottles had been filled seven days prior and contained

180 pills; out of the total of 360 pills, 50 remained.

The grandmother consented to a search of the house, which turned up a

crack pipe, a green baggie with some white residue, and an empty syringe. The

crack pipe and the green baggie were located in the master bedroom, which the

grandmother said that she shared with S.I.-M.G. The location where the crack

pipe was found was not far from a ―play‖ skillet and was within the child’s reach.

The crack pipe tested positive for cocaine.

CPS made the decision to remove S.I.-M.G. from the grandmother in

February 2008 because of the condition of the grandmother and because of the

crack pipe and baggie that were found in the house and readily accessible to

4
The grandmother told Detective Buchanan that she had been caring for
S.I.-M.G. since December 2007 because Mother was in jail on a robbery charge.

5
S.I.-M.G. Detective Buchanan testified that a hair follicle test on S.I.-M.G. came

back positive for cocaine. Detective Buchanan later obtained two warrants for

the grandmother’s arrest for possession of a controlled substance under a gram

and endangering a child, and the grandmother was ultimately arrested.

D. Mother Receives Probation and the Department
Returns S.I.-M.G. to Mother

On June 12, 2008, Mother was placed on probation for ten years. After

Mother was placed on probation, she diligently worked her service plan, and S.I.-

M.G. was returned to her.

E. Police Arrest Mother’s Boyfriend Chris in Possession of Heroin

Sergeant Brad Curtis, who was sergeant over special operations including

narcotics, testified that on September 10, 2010, he had received information

regarding an individual who was possibly trafficking narcotics at the Foxfire

Apartments in the Bell Avenue area. Sergeant Curtis found Chris, Mother’s

boyfriend, ―completely out of it‖; he almost fell while walking into the parking lot.

Sergeant Curtis found a straw and a baggie with a black tar substance in

Chris’s front pocket. More drug paraphernalia and black tar heroin were found in

Chris’s backpack. The total black tar heroin was twenty-three grams, which had

an approximate street value of $2,300 and was the largest amount that Sergeant

Curtis had obtained at one time. Sergeant Curtis testified that the backpack that

Chris was carrying on the day in question was one that could have been easily

6
opened by a child. A purse found in the backpack contained three prescription

bottles labeled as belonging to Mother.

Sergeant Curtis spoke with Mother at her apartment, and she said that she

had no knowledge about what was taking place. Sergeant Curtis said that

Mother was cooperative and that her reaction regarding Chris was, appropriately,

anger.

F. Second Removal of S.I.-M.G.

Jennifer Matthews, an investigator with the Department of Family and

Protective Services, testified that after a referral for drug abuse came in to the

Department, she went on September 13, 2010, to the school to speak with S.I.-

M.G., who was seven. S.I.-M.G. said that Mother, her Uncle Jacob, and her

grandmother lived in her home; her ―dad‖ Chris, who was Mother’s paramour,

was no longer living with them because he had been arrested. S.I.-M.G. did not

know what drugs were; she said that Chris had been arrested for ―heritage‖ but

did not know what that was. S.I.-M.G. said that they do not have many friends

that come to the house; Mother usually lays on the couch most of the time.

Matthews attempted to talk to Mother, but she was not home. Matthews

received a phone call the following day from the grandmother; Mother was at the

doctor being treated for complications related to her pregnancy. 5 When

Matthews spoke with Mother on September 14, 2010, the first thing Mother said

5
After Chris was arrested, Mother decided that she could not do drugs
anymore and tried to quit, which caused a ―near miscarriage.‖

7
when Matthews arrived at the apartment was that she had left her purse at the

hospital and did not have her medicine bottles; Matthews thought this was odd

because she had not asked about Mother’s purse or medicine bottles.6

Mother continued to volunteer information, including that she needed to go

see her therapist and that she did not want Matthews to talk to her probation

officer or CASA because they would be upset that CPS was involved in her life

again. Matthews testified that Mother’s drug test from the previous night was

positive for amphetamines (in addition to positive for opiates, which she had a

prescription for), but Mother claimed that she had never done speed and denied

having a drug history. Mother said that she was taking Xanax for anxiety and

Lortab (hydrocodone) for a back injury that had occurred seven years earlier.

Mother’s hydrocodone prescription allowed her to take two tablets every four

hours, but the prescription was only for twenty pills. Mother admitted that she

had started using more than she should have of the hydrocodone and Xanax.

Although Mother knew before 2010 that Chris was taking hydrocodone for

an injury and kidney stones, and although Mother had suspicions that Chris had

used drugs, Mother said that there was never any blatant proof of illegal drug

use. Because Chris had never used heroin in Mother’s presence, Mother did not

believe that Chris was a heroin addict. Mother said that Chris’s arrest was a

misunderstanding and that the backpack belonged to Chris’s brother. But Mother

6
Matthews later learned from the hospital that Mother did not leave her
purse there; she left her discharge papers.

8
indicated that she understood that Chris could not be around the family and was

not to have contact with S.I.-M.G.

The grandmother took a drug test that was positive for opiates because

she was on hydrocodone and Xanax, just like Mother. Fifteen days after the

grandmother’s 120-count bottle of hydrocodone was filled, it contained only eight

pills, even though it should have contained approximately sixty. The

grandmother said that she put them in a separate container. Mother and the

grandmother declined to sign a medical release that would have allowed

Matthews to check into their prescriptions.

The next day, on September 15, 2010, Matthews observed Chris leave the

apartment; Mother later said that he had been there for only a few seconds. The

following day, on September 16, 2010, the Department requested and received

custody of S.I.-M.G. S.I.-M.G. was removed because Chris had been arrested

for drug use, Chris had not been kept away from S.I.-M.G. as set forth in the

safety plan, and Mother and grandmother were overtaking their hydrocodone

medication. Matthews testified that Mother’s and grandmother’s overtaking of

hydrocodone affected their brains and the way they paid attention, which could

endanger a child. After a temporary placement, S.I.-M.G. was placed with the

foster family who had cared for her after she was removed from grandmother’s

home in 2008.

9
 G. Department Removes S.B.G.-R. After She Is Born Addicted

On September 19, 2010, Mother went into labor at 34.5 weeks and

delivered S.B.G.-R.7 Mother warned the nurses that S.B.G.-R. would be born

addicted, and the Department ultimately received a referral because S.B.G.-R.

tested positive for benzodiazepine and opiates. Angela Evans, a nurse in the

NICU at Presbyterian Hospital of Denton, testified that she cared for S.B.G.-R.

after she was born addicted to opiates and ―benzoids.‖ S.B.G.-R.’s withdrawal

score was twenty-two, which was a very high score; Evans had never seen a

score that high before. S.B.G.-R.’s withdrawal symptoms included a very irritable

cry; stiffness in her lower legs; jitteriness; an inability to sleep for three hours

between feedings; trouble eating;8 loose, watery stools; and emesis (vomiting).

S.B.G.-R. received methadone orally every six hours to help with the withdrawal

symptoms. S.B.G.-R. remained in the NICU for approximately five weeks. Upon

her discharge, S.B.G.-R. was placed with Chris’s parents and continued on

Phenobarbital to help with the remaining withdrawal symptoms, which included

irritability.

7
S.B.G.-R. was born premature but did not experience symptoms of
premature birth.
8
There was conflicting testimony on this symptom: Matthews listed
―trouble eating‖ as one of S.B.G.-R.’s withdrawal symptoms, but Evans said that
S.B.G.-R. was eating well.

10
 H. Mother’s Drug Evaluation at First Step

Cheryl Crosley-Culberson, the clinical director with First Step Denton

County Outreach, testified that Mother underwent an evaluation on October 7,

2010, and told her that she had started drinking alcohol at age sixteen but had

not consumed alcohol since 2009, other than social, occasional usage. Mother

told Crosley-Culberson that her first and last use of methamphetamine occurred

at age twenty-four and was experimental. Mother had experimented once with

the following drugs: ecstasy, marijuana, cocaine, LSD, and heroin. Mother listed

that she was taking ten to twenty-five milligrams of Narcan, an opiate, on a daily

basis for back pain and that she was taking Zantac and Celexa. Crosley-

Culberson testified that Narcan is a highly addictive drug. Mother did not tell

Crosley-Culberson that she had recently delivered a child on September 19,

2010.9 Based on the information received, Mother’s diagnostic impression was

cocaine abuse and heroin abuse. Even though Mother had noted only

―experimental‖ use of these drugs, Crosley-Culberson reached that diagnostic

impression after reviewing Mother’s legal history and her current CPS situation.

I. Mother’s Service Plan

Brittany Nichols, a former caseworker with CPS, testified that she went

over the service plan with Mother on October 15, 2010. Mother was allowed a

two-hour weekly visit with the children, and the Department had trouble getting

9
There is no evidence that Mother was directly asked about this fact and
failed to provide the information.

11
her to leave at the end of each visit because she wanted to stay longer. Nichols

noted that this made it difficult on S.I.-M.G.

Nichols tested Mother five times for drugs, and every time she was positive

for opiates and ―benzos.‖ Nichols lost contact with Mother in November 2010

and later learned that she had been arrested on a probation violation for testing

positive for drugs.

J. Mother’s Counseling

Brandy Pounds, a licensed professional counselor who had started seeing

Mother in 2009 while she was on probation with Denton County, testified that

Mother told her in April 2010 that she was pregnant. At that time, Mother’s

situation ―was kind of ambiguous‖; she was struggling in her relationship, 10 with

career choices, and with her family. Mother admitted that she was physically

addicted to Lortab and Xanax. Mother did not want to be on the medications, but

she was fearful of stopping them due to the physical withdrawals that would

occur. Mother was remorseful that S.B.G.-R. was born addicted to drugs.

Mother told Pounds that she did not refill the prescriptions after she gave birth.

During random drug tests, Pounds testified that Mother had tested positive

for hydrocodone. Pounds said that in a drug test, both hydrocodone and heroin

come back as opiates.

10
Mother had told Pounds that Chris’s heroin addiction was a problem in
their relationship and that was why she struggled with staying with him.

12
 Mother last saw Pounds in November 2010 because the probation

department notified Pounds that they would no longer fund the counseling. It

surprised Pounds that Mother’s probation was revoked in November 2010 after a

hair strand of Mother’s tested positive for heroin. Pounds testified that ―heroin

wasn’t even an issue we were treating [Mother] for.‖

K. Mother’s Probation Revoked After Positive Drug Test

Mother’s probation was revoked in early November 2010 because Mother

tested positive for heroin. Mother was placed in jail in Dallas County. While she

was in jail, Mother wrote a letter to Chris telling him which drugs he could take

that would not show up on a urinalysis. Mother was later transferred to SAFPF

(substance abuse felony prison facility).

L. Chris’s Second Drug Arrest

Shane Norie, an investigator with the Denton County Sheriff’s Office’s

narcotics unit, testified that he was an undercover officer who worked to

dismantle drug organizations, including the one that Chris was a part of. Norie

arrested Chris on May 19, 2011. Norie testified that Chris had ―a substantial

impact‖ on the Denton area because he was selling quite a bit of black tar heroin.

Norie testified that Chris had sold three grams a week for approximately a month,

then he sold six grams for about two weeks, and then he started selling ounces.

Chris told Norie that he was using heroin daily. Norie testified that in this

scenario, he would find it hard to believe that Mother did not know that Chris was

using heroin. Norie said that if Mother was also on drugs, it might cause her not

13
to recognize that Chris was on drugs. Norie testified that the use of heroin

impacts the ability to parent and is endangering to a child and that a drug

environment filled with addicts is dangerous to a child even if no dope is

present.11

M. Mother’s Time in SAFPF the Halfway House

Mike Storm, a Dallas County adult probation officer, testified that SAFPF is

a treatment center inside the Texas Department of Corrections where people

who have chemical addictions are sent for ninety days to a year. When they are

released, they check into TTC, which is a transitional treatment center for ninety

days. After that, they go into aftercare treatment for six to nine months, during

which time they attend after care twice a week, attend two NA/AA meetings per

week, visit their probation officer twice a month, and attend individual counseling

twice a month.

Storm testified that Mother had entered the Henley Unit on April 1, 2011;

was released on December 28, 2011; and entered the TTC program at the

Salvation Army that same day. While Mother was at the Salvation Army she was

required to maintain her recovery by attending AA/NA meetings, undergoing

counseling, seeking employment, starting a savings account, obtaining a twelve-

step sponsor for her AA/NA meetings, securing housing, and figuring out

11
There was no evidence that a child was exposed to the heroin found on
May 19, 2011; all of the children’s things in the apartment were packed up
because the children had been removed by the Department.

14
transportation. Mother was compliant on the program; she had submitted

urinalyses that were negative.12 While Mother was at the halfway house, she

requested to resume visits with her daughters, but visits were not authorized.

Glenda Hood, who was Mother’s sponsor in her recovery program, testified

that she met with Mother three or four times a week at the Salvation Army.

Mother told Hood that she ―was hooked on prescription pills while she was

pregnant‖ and heroin. Hood testified that Mother is ―doing the program‖ and

―receiving treatment well, and she has some issues that she needs to deal with.‖

According to Hood, Mother is making progress on her decision-making skills, but

the real test will occur when she is released.13

Mother was set to complete the TTC program on March 28, 2012, which

was two weeks after the termination trial. But if Mother was not able to finish the

program’s requirements, her stay could be extended a few days in order to meet

the CJAD14 requirements. After Mother completes the six to nine months in TTC,

she will return to regular case load and report to her probation officer once a

month until 2018.

12
Dea Davis, a CPS caseworker, testified that a month’s worth of clean
drug tests in December 2011 to January 2012 did not show a pattern of being
able to remain drug-free.
13
Crosley-Culberson testified that there is a high probability of relapse
within the first year.
14
Although Storm defined ―CJAD‖ as the ―criminal justice department out of
Austin,‖ it is more commonly known as the Community Justice Assistance
Division.

15
 N. Mother’s Testimony

Mother testified that she did not know that she was pregnant for the first

four months of her pregnancy with S.B.G.-R. During the early stages of the

pregnancy, Mother did not talk to her doctor about being dependent on

prescriptions because she did not know that she was pregnant until she was four

months’ pregnant; Mother admitted that her delay caused a lot of problems for

her. Mother also admitted that she had abused drugs for a long time and that

when she learned that she was pregnant with S.B.G.-R., she was scared

because she knew that she was physically addicted to Lortab and Xanax.

Mother testified that she had abused prescription drugs during the first trimester,

which is critical to a baby’s development. Mother expressed having a

―tremendous amount of guilt and shame‖ for putting S.B.G.-R. through withdrawal

because Mother described her own experience of going through withdrawals as

―horrible‖ and stated that she would rather die than go through it again.

O. Disposition

After hearing the evidence above, the jury answered ―yes‖ to every

dispositive question. The trial court thereafter signed a judgment terminating

Mother’s parental rights to S.I.-M.G. and S.B.G.-R. based on Texas Family Code

section 161.001(1)(D), (E), and (O) and section 161.001(2). This appeal

followed.

16
 III. BURDEN OF PROOF IN TERMINATION CASES

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 (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). In a termination case, the State seeks not just to limit parental rights

but to erase them permanently—to divest the parent 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. Holick, 685 S.W.2d at 20–21; In re R.R., 294 S.W.3d 213, 233 (Tex.

App.—Fort Worth 2009, no pet.).

In proceedings to terminate the parent-child relationship brought under

section 161.001 of the family code, the petitioner must establish one ground

listed under subsection (1) of the statute and must also prove that termination is

in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (West Supp.

2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be

17
established; termination may not be based solely on the best interest of the child

as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727

S.W.2d 531, 533 (Tex. 1987); In re D.T., 34 S.W.3d 625, 629 (Tex. App.—Fort

Worth 2000, pet. denied) (op. on reh’g).

Termination decisions must be supported by clear and convincing

evidence. Tex. Fam. Code Ann. § 161.001; see also § 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 standards for termination and

modification).

IV. ALLEGED JURY CHARGE ERRORS

A. Evidence Supports Submission of Jury Question on Endangering
Conduct—Section 161.001(1)(E) Grounds

In her fourth issue, Mother argues that the trial court erred by including jury

question six, which asked the jury, ―Do you find by clear and convincing evidence

that the mother, . . . , has engaged in conduct, or knowingly placed the child with

persons who engaged in conduct, which endangered the physical or emotional

well-being of the child [S.B.G.-R.]?‖ Mother’s argument under her fourth issue is

two-fold: she argues (1) that there is no evidence to support the inclusion of jury

18
question six because if a child is born addicted to a controlled substance legally

obtained by prescription, that is not a ground for termination under section

161.001(1)(R) and (2) that there is no evidence to support the inclusion of jury

question six because S.B.G.-R. was removed at birth and was therefore under

the complete care and control of the Department, not Mother.

The standard of review in determining whether sufficient evidence supports

submission of a jury question is different from the standard of review that we

apply in reviewing the sufficiency of the evidence to support a jury’s finding in a

termination trial. The former requires only more than a scintilla of evidence, while

the latter must be supported by clear and convincing evidence.15 Because

Mother challenges the evidence to support submission of jury question 6, not the

sufficiency of the evidence to support the jury’s answer to jury question 6, we

apply the jury charge standard of review.

An objection to the submission of a question in the court’s charge on

evidentiary grounds is a challenge to the legal sufficiency of the evidence.

Elbaor, 845 S.W.2d at 243. We may sustain a legal sufficiency challenge only

when (1) the record discloses a complete absence of evidence of a vital fact; (2)

the court is barred by rules of law or of evidence from giving weight to the only

15
Compare Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992) (stating that
objection to question in jury charge is challenge to legal sufficiency), and Cont’l
Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996) (stating that
anything more than a scintilla of evidence is legally sufficient to support a jury
finding), with Tex. Fam. Code Ann. §§ 161.001, .206(a) (requiring termination
decisions to be supported by clear and convincing evidence).

19
evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact

is no more than a mere scintilla; or (4) the evidence establishes conclusively the

opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328,

334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No

Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–

63 (1960). In determining whether there is legally sufficient evidence to support

the finding under review, we must consider evidence favorable to the finding if a

reasonable factfinder could and disregard evidence contrary to the finding unless

a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228

S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827

(Tex. 2005). Anything more than a scintilla of evidence is legally sufficient to

support the finding. Cont’l Coffee Prods. Co., 937 S.W.2d at 450; Leitch v.

Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). More than a scintilla of evidence

exists if the evidence furnishes some reasonable basis for differing conclusions

by reasonable minds about the existence of a vital fact. Rocor Int’l, Inc. v. Nat’l

Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002).

Endanger means to expose to loss or injury or to jeopardize. Boyd, 727

S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003,

no pet.); see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). It is not

necessary to establish that a parent intended to endanger a child in order to

support termination of the parent-child relationship under subsection (E). See

M.C., 917 S.W.2d at 270. To prove endangerment under subsection

20
161.001(1)(E), the relevant inquiry is whether evidence exists that the

endangerment of the child’s physical well-being was the direct result of the

parent’s conduct, including acts, omissions, or failures to act. J.T.G., 121 S.W.3d

at 125. 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). The conduct need not

occur in the child’s presence, and it may occur ―both before and after the child

has been removed by the Department.‖ Walker v. Tex. Dep’t of Family &

Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009,

pet. denied). Moreover, termination under subsection 161.001(1)(E) must be

based on more than a single act or omission; a voluntary, deliberate, and

conscious course of conduct by the parent is required. Tex. Fam. Code Ann.

§ 161.001(1)(E); J.T.G., 121 S.W.3d at 125.

The specific danger to the child’s well-being may be inferred from parental

misconduct standing alone. Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d

732, 738 (Tex. App.—Fort Worth 2004, pet. denied). As a general rule, conduct

that subjects a child to a life of uncertainty and instability endangers the physical

and emotional well-being of a child. R.W., 129 S.W.3d at 739. The Supreme

Court of Texas has acknowledged that ―a parent’s use of narcotics and its effect

on his or her ability to parent may qualify as an endangering course of conduct.‖

J.O.A., 283 S.W.3d at 345. The Houston First Court of Appeals has explained

that illegal drug use may support termination under section 161.001(1)(E)

because ―it exposes the child to the possibility that the parent may be impaired or

21
imprisoned.‖ Walker, 312 S.W.3d at 617. Additionally, illegal drug use during

pregnancy can support a charge that the mother has engaged in conduct that

endangers the physical and emotional welfare of the child. In re M.L.B., 269

S.W.3d 757, 760 (Tex. App.—Beaumont 2008, no pet.) (citing Dupree v. Tex.

Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.—Dallas

1995, no writ)). Further, a parent’s decision to engage in illegal drug use during

the pendency of a termination suit, when the parent is at risk of losing a child,

supports a finding that the parent engaged in conduct that endangered the child’s

physical or emotional well-being. In re M.E.-M.N., 342 S.W.3d 254, 263 (Tex.

App.—Fort Worth 2011, pet. denied).

Turning to an analysis of the evidence to support the submission of jury

question six, we note that the Department abandoned subsection 161.001(1)(R)

as a ground for terminating Mother’s parental rights to S.B.G.-R. and proceeded

under subsection (E), among other grounds. Under subsection (E), as set forth

above, evidence of Mother’s drug use, both overuse of prescription medications

and use of illegal drugs, may be considered in determining whether some

evidence exists to support submission of question six—section 161.001(1)(E)

grounds—to the jury. Compare Tex. Fam. Code Ann. § 161.001(1)(R), with id.

§ 161.001(1)(E); compare also In re P.K.C., No. 02-08-00060-CV, 2009 WL

279337, at *3 (Tex. App.—Fort Worth Feb. 5, 2009, no pet.) (mem. op.)

(considering test results showing that child was born with cocaine in her bodily

fluids in analyzing trial court’s subsection (R) finding), with J.O.A., 283 S.W.3d at

22
345 (holding that ―a parent’s use of narcotics and its effect on his or her ability to

parent may qualify as an endangering course of conduct‖ under subsection (E)

ground), In re T.D.L., No. 02-05-00250-CV, 2006 WL 302126, at *7–8 (Tex.

App.—Feb. 9, 2006, no pet.) (mem. op.) (considering mother’s continuous abuse

of prescription drugs in analyzing trial court’s subsection (E) finding), and In re

M.Y., No. 02-07-00186-CV, 2008 WL 204618, at *10 (Tex. App.—Fort Worth Jan.

24, 2008, no pet.) (mem. op.) (considering mother’s continuous abuse of both

prescription and illegal drugs in analyzing trial court’s subsection (E) finding).16

Because case law provides that, in evaluating a parent’s conduct under

subsection (E), the conduct need not occur in the child’s presence, and it may

occur ―both before and after the child has been removed by the Department,‖ we

need not, as Mother suggests, focus solely on Mother’s conduct after S.B.G.-R.

was removed by the Department. See Walker, 312 S.W.3d at 617. Looking to

Mother’s conduct while she was pregnant with S.B.G.-R., Mother testified that

she had abused Xanax and hydrocodone during the first trimester, which was

during a critical stage of S.B.G.-R.’s development. Although as Mother points

16
From these cases it is clear that prescription drug abuse has been
treated as endangering conduct equal with illegal drug abuse and will support a
finding of endangering conduct under subsection (E). See T.D.L., 2006 WL
302126, at *7–8 (holding evidence legally sufficient to support trial court’s
subsection (E) finding because evidence revealed that mother’s prior course of
conduct regarding her continuous misuse of prescription drugs demonstrated that
she had endangered her children’s well-being; although mother had tested
positive for marijuana and cocaine on two occasions, the emphasis throughout
the analysis was on mother’s continuous abuse of prescription drugs). We
therefore continue to follow the prior precedent of this court.

23
out, Mother’s doctor continued to prescribe Xanax and hydrocodone for her

during her pregnancy with S.B.G.-R., Mother did not know or reveal to her doctor

that she was pregnant until she was four months’ pregnant. The record also

reveals that throughout her pregnancy, Mother not only continued to take the

prescriptions in the prescribed dosage but also that Mother abused the

prescriptions, exceeding the dosage prescribed by the doctor, which endangered

S.B.G.-R. and contributed to S.B.G.-R.’s addiction to opiates and

benzodiazepines. As set forth above, S.B.G.-R. remained in the hospital for five

weeks after birth while she was on methadone for withdrawals, and when she

was released, she continued on Phenobarbital for the remaining withdrawal

symptoms. This evidence constitutes more than a scintilla of evidence to support

the inclusion of jury question six regarding Mother’s endangering conduct toward

S.B.G.-R. Accord M.E.-M.N., 342 S.W.3d at 262–64 (holding evidence legally

sufficient to support factfinder’s firm conviction or belief that appellant had

engaged in conduct that endangered child because appellant had abused

prescription drugs, along with testing positive for cocaine or methamphetamine);

In re V.R., No. 02-09-00001-CV, 2009 WL 2356906, at *6 (Tex. App.—Fort Worth

July 30, 2009, no pet.) (mem. op.) (holding evidence sufficient to support trial

court’s endangerment findings based on mother’s drug history and her drug use

before and during the termination proceedings, regardless of the medical

reasons for which she claimed she took the drugs; mother had taken Vicodin

while pregnant and tested positive for the drug at child’s birth and at times after

24
birth, which showed a continuing course of conduct); T.D.L., 2006 WL 302126, at

*7–8 (holding evidence legally sufficient to support trial court’s subsection (E)

finding because evidence revealed that mother had continuously abused

prescription drugs).

Even without the evidence of Mother’s prescription drug use in excess of

the prescribed dosage, the evidence is sufficient to support the inclusion of jury

question six because there was evidence that Mother had used heroin before

and after S.B.G.-R. was born. Glenda Hood, Mother’s sponsor at the Salvation

Army, testified that Mother had told her that she had used heroin while pregnant

with S.B.G.-R. Additionally, Mother’s evaluation at First Step Denton County

Outreach in October 2010 showed that Mother had abused cocaine and heroin.

And in early November 2010, approximately six weeks after S.B.G.-R. was born,

Mother’s probation was revoked after a hair strand test came back positive for

heroin; Mother thereafter spent time in SAFP and in a halfway house and was

still living at the halfway house during the termination trial. The above is some

evidence that Mother’s continuous, voluntary, deliberate, and conscious course

of conduct—that is, using illegal drugs during her pregnancy and after her

children had been removed, as well as spending time in jail—subjected S.B.G.-R.

to a life of uncertainty and instability and supported the inclusion of jury question

six that Mother had engaged in conduct that had endangered S.B.G.-R.’s

physical or emotional well-being. We therefore hold that more than a scintilla of

evidence exists to support the submission of the section 161.001(1)(E)

25
endangering conduct question to the jury. See, e.g., Patlyek v. Brittain, 149

S.W.3d 781, 789 (Tex. App.—Austin 2004, pet. denied) (holding that there was

some evidence to support the submission of the past physical impairment

element of damages); see also In re D.J.W., No. 01-11-00703-CV, 2012 WL

3525542, at *9 (Tex. App.—Houston [1st Dist.] Aug. 16, 2012, no pet. h.) (holding

evidence legally sufficient to support finding that mother used illegal narcotics

before and after child was taken into custody by Department and that mother’s

drug use endangered the physical or emotional well-being of child by exposing

him to risks that mother would be impaired or imprisoned); M.L.B., 269 S.W.3d at

760 (holding evidence sufficient to establish grounds for termination because

mother had a long history of drug abuse and knew she was pregnant when she

consumed controlled substances).17 We overrule Mother’s fourth issue.18

17
Mother does not challenge the sufficiency of the evidence supporting the
subsection (E) finding. Even if such a challenge had been made, based on the
evidence and case law set out above, it would not result in a reversal as the
record demonstrates that the jury’s subsection (E) finding is supported by clear
and convincing evidence of Mother’s conduct—including abuse of prescription
drugs and illegal drug use, limited prenatal care, and imprisonment—that
endangered the physical or emotional well-being of S.B.G.-R.
18
Along with a best interest finding, which we discuss below, a finding of
only one ground alleged under section 161.001(1) is sufficient to support a
judgment of termination. See In re E.M.N., 221 S.W.3d 815, 821 (Tex. App.—
Fort Worth 2007, no pet.). Because we hold that the evidence supports the
termination of Mother’s parental rights under section 161.001(1)(E), we need not
address Mother’s second issue challenging the section 161.001(1)(O) finding or
Mother’s third issue challenging the submission of the section 161.001(1)(D) jury
question. See Tex. R. App. P. 47.1 (stating that appellate court need address
every issue necessary for final disposition of appeal).

26
 B. No Charge Instruction Required on Wealth; Ability to Provide
Necessities Is Proper Consideration in Best Interest Analysis

In her first issue, Mother argues that the trial court abused its discretion by

failing to instruct the jury that they should disregard the relative wealth of Mother

compared to the proposed adoption candidates for the children. Specifically,

Mother argues that the trial court abused its discretion by not including in the jury

charge her proposed instruction—i.e., ―You are instructed that you are not to

consider the wealth of any person in answering any question submitted to you by

the court.‖ The trial court denied the requested instruction stating, ―I agree with

you that wealth alone should not be a factor in this case, but I believe that that

oversimplifies the issues in the case as well.‖

We review a trial court’s decision to submit or refuse a particular instruction

under an abuse of discretion standard of review. See In re V.L.K., 24 S.W.3d

338, 341 (Tex. 2000) (citing La.-Pac. Corp. v. Knighten, 976 S.W.2d 674, 676

(Tex. 1998)). The trial court has considerable discretion to determine necessary

and proper jury instructions. See id.

A parent’s rights cannot be terminated based on poverty without a showing

that the poverty has endangered the child. See Doyle v. Tex. Dep’t of Protective

& Regulatory Servs., 16 S.W.3d 390, 398 (Tex. App.—El Paso 2000, pet.

denied). Nor can a parent’s rights be terminated based on a foster family’s ability

to provide more than a biological parent can provide. See generally In re W.C.,

98 S.W.3d 753, 758 (Tex. App.—Fort Worth 2003, no pet.) (stating that under

27
best interest prong of section 161.001(2), termination should not be used to

merely reallocate children to better and more prosperous parents).

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). Prompt and

permanent placement of the child in a safe environment is also presumed to be

in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008). The

following factors should be considered in evaluating the parent’s willingness and

ability to provide the child with a safe environment:

(1) the child’s age and physical and mental vulnerabilities;

(2) the frequency and nature of out-of-home placements;

(3) the magnitude, frequency, and circumstances of the harm to the
child;

(4) whether the child has been the victim of repeated harm after the
initial report and intervention by the department or other agency;

(5) whether the child is fearful of living in or returning to the child’s
home;

(6) the results of psychiatric, psychological, or developmental
evaluations of the child, the child’s parents, other family members, or
others who have access to the child’s home;

(7) whether there is a history of abusive or assaultive conduct by the
child’s family or others who have access to the child’s home;

(8) whether there is a history of substance abuse by the child’s
family or others who have access to the child’s home;

(9) whether the perpetrator of the harm to the child is identified;

(10) the willingness and ability of the child’s family to seek out,
accept, and complete counseling services and to cooperate with and
facilitate an appropriate agency’s close supervision;

28
 (11) the willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable period of
time;

(12) whether the child’s family demonstrates adequate parenting
skills, including providing the child and other children under the
family’s care with:

(A) minimally adequate health and nutritional care;

(B) care, nurturance, and appropriate discipline consistent with
the child’s physical and psychological development;

(C) guidance and supervision consistent with the child’s
safety;

(D) a safe physical home environment;

(E) protection from repeated exposure to violence even
though the violence may not be directed at the child; and

(F) an understanding of the child’s needs and capabilities;
and

(13) whether an adequate social support system consisting of an
extended family and friends is available to the child.

Id. § 263.307(b); R.R., 209 S.W.3d at 116.

Other, nonexclusive factors that the trier of fact in a termination case may

use in determining the best interest of the child include:

(A) the desires of the child;

(B) the emotional and physical needs of the child now and in the
future;

(C) the emotional and physical danger to the child now and in the
future;

(D) the parental abilities of the individuals seeking custody;

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

29
 (F) the plans for the child by these individuals or by the agency
seeking custody;

(G) the stability of the home or proposed placement;

(H) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and

(I) any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted). A

parent’s lack of education, training, or misfortune, including poverty, falls within

the final category of factors enumerated in Holley, and is thus only one of the

factors to be considered by the trier of fact in determining the best interest of the

child. In re S.H.A., 728 S.W.2d 73, 89–90 (Tex. App.—Dallas 1987, writ ref’d

n.r.e.).

Here, the focus of the trial was not on Mother’s wealth or lack thereof but

rather on whether she, as a recovering drug addict living at a halfway house,

could provide for her children. During the questioning of Chris’s mother, who

was caring for S.B.G.-R., it was clear that the issue was not about who had more

wealth but about whether Chris and Mother, who were in jail and at a halfway

house, respectively, could provide basic necessities for the children:

Q. Now, you were asked some questions about money,
having money for raising children. Do you recall Mr. Trantham’s
questions about that?

A. No, not really.

Q. That you have the money and the resources to provide, to
take trips. Do you recall that line of questions?

30
 A. Yes, uh-huh.

Q. Wouldn’t you say as a parent that when you refer to
money, that you’re not talking about affluence. You’re talking about
money being necessary to live on, to provide, eat, put a roof over
your head?

A. Exactly.

Q. Do you think those are necessities, basic necessities that
a parent is responsible for providing for their children?

A. Yes.

Q. And in testifying here to the jury today, wouldn’t you agree
with me that as your son and [Mother] sit in this courtroom, to the
best of your knowledge, they don’t have jobs, they don’t have
money, and they don’t have a roof over their head?

A. That’s what I understand.

Q. And do you think that as we sit here today, if the Court
ordered the children back into their custody, that you don’t know
where they would live?

A. No, I do not.

Q. Or how they would feed those children?

A. No.

Because under the section 263.307(b) factors and the Holley factors listed above

the jury was allowed to consider in making its best interest determination whether

Mother could provide her children with health and nutritional care and a safe

physical home environment and whether she could provide for her children’s

emotional and physical needs, which could be weighed against any excuse (such

as poverty) for her inability to provide, we hold that the trial court did not abuse its

31
discretion by denying Mother’s proposed jury instruction to disregard the relative

wealth of the parties. See Tex. Fam. Code Ann. § 263.307(b); Holley, 544

S.W.2d at 371–72; S.H.A., 728 S.W.2d at 90–91 (despite parents’ poverty and

low intelligence, legally sufficient evidence supported best interest finding

because parents did not have the capacity or the ability to care for child); see

also In re T.N., 180 S.W.3d 376, 385 (Tex. App.—Amarillo 2005, no pet.) (citing

S.H.A. and holding that evidence was sufficient to support best interest finding

because evidence showed that mother’s drug use and demonstrated association

with other drug users constituted a danger emotionally and physically both in the

present and future). We overrule Mother’s first issue.

V. MOTHER LACKS STANDING TO CHALLENGE AD LITEM’S
REPRESENTATION OF CHILD

In her fifth issue, Mother argues that S.I.-M.G.’s ad litem ―failed and

refused to present her client’s legal position to the court.‖19 Mother contends that

S.I.-M.G. was denied due process of law because despite S.I.-M.G.’s requests to

have contact with Mother, the attorney ad litem ―insisted that the best interest of

the child required termination.‖ Mother further argues that the attorney ad litem

did not ―have standing to advocate for termination on behalf of the child.‖

19
The attorney ad litem represented both S.I.-M.G. and S.B.G.-R. On
appeal, Mother challenges only the attorney ad litem’s representation of S.I.-M.G.
This is the only challenge that Mother makes to the termination of her parental
rights to S.I.-M.G.

32
 Without citing any statutory or case law, Mother summarily states that she

has standing to bring this issue because she is ―the mother of the child, best

friend, and only person able to make legal decisions for the child until those

powers were usurped by the State.‖ We disagree.

A party may not complain of errors that do not injuriously affect her or that

affect only the rights of others. In re T.N., 142 S.W.3d 522, 524 (Tex. App.—Fort

Worth 2004, no pet.) (citing Tex. Workers’ Comp. Ins. Fund v. Mandlbauer, 988

S.W.2d 750, 752 (Tex. 1999); Buckholts ISD v. Glaser, 632 S.W.2d 146, 150

(Tex. 1982); Jackson v. Fontaine’s Clinics, Inc., 499 S.W.2d 87, 92 (Tex. 1973)).

An exception exists when the appellant is deemed to be a party under the

doctrine of virtual representation, which requires among other elements that the

appellant and the children have identical interests. Id. (citing Gunn v.

Cavanaugh, 391 S.W.2d 723, 725 (Tex. 1965)). The record does not show that

Mother and S.I.-M.G. have identical interests, nor does Mother claim that they

do. Instead, without presenting any evidence that Mother suffered harm from the

ad litem’s representation of S.I.-M.G., Mother seeks to exploit the alleged

deficiencies of the child’s counsel for her own use on appeal.

Mother does not have standing on appeal to complain about the

performance of the child’s attorney on the child’s behalf. At the time of the trial,

CPS had temporary managing conservatorship, including the right to represent

the child in a legal action and to make other decisions of substantial legal

significance concerning the child. See Tex. Fam. Code Ann. § 153.371(8) (West

33
2008). Mother did not have that right then, nor does she now on appeal.

Further, Mother has no standing to complain about the child’s lawyer on her own

behalf. See T.N., 142 S.W.3d at 524 (citing Mandlbauer, 988 S.W.2d at 752;

Glaser, 632 S.W.2d at 150; Jackson, 499 S.W.2d at 92; see also In re Frank L.,

97 Cal. Rptr. 2d 88, 90, 81 Cal. App. 4th 700, 703 (Cal. Ct. App. 2000) (holding

that parents must actually make a showing that ineffective assistance of the

children’s attorney affected the parents’ interest to have standing to raise the

claim)).20 Because Mother lacks standing to complain about the child’s attorney

ad litem, we overrule Mother’s fifth issue.

VI. CONCLUSION

Having overruled every issue necessary for disposition of this appeal, we

affirm the trial court’s judgment terminating Mother’s parental rights to S.I.-M.G.

and S.B.G.-R.

SUE WALKER
JUSTICE

PANEL: WALKER, MCCOY, and GABRIEL, JJ.

DELIVERED: November 15, 2012

20
Moreover, assuming in the alternative that Mother did have standing to
complain about S.I.-M.G.’s ad litem, Texas Family Code section 107.008 states
that an attorney ad litem may determine that the child cannot meaningfully
formulate the child’s objectives of representation and, in that case, may present
to the court a position that the attorney determines will serve the best interest of
the child. Tex. Fam. Code Ann. § 107.008(a)–(b) (West 2008).

34