L.M. and Y.Y. v. Department of Family and Protective Services

Opinion issued July 12, 2012

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-11-00137-CV
———————————
L.M. AND Y.Y., Appellants
V.
DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee

On Appeal from the 506th District Court
Grimes County, Texas
Trial Court Case No. 31627

MEMORANDUM OPINION

Following a jury trial, the trial court signed a judgment terminating the

parental rights of L.M. and Y.Y. to their three minor children, I.M., L.M., Jr., and
T.M.1 Identifying five issues, L.M. and Y.Y. challenge the judgment. They

contend (1) the trial court abused its discretion by admitting certain evidence at

trial, (2) the evidence is legally and factually insufficient to support the judgment,

and (3) they received ineffective assistance of counsel at trial.

We affirm.

Background Summary

On September 18, 2009, Y.Y., accompanied by her husband, L.M., went to

the orthopedic clinic in Brenham, Texas for treatment of Y.Y.’s injured arm. X-

rays revealed that Y.Y.’s arm was broken. Y.Y. told the physician’s assistant that

L.M. had broken her arm two weeks earlier. She stated that the injury occurred

when L.M. was hitting her, and she raised her arm to deflect L.M.’s blows. Y.Y.

stated that L.M. had prevented her from seeking treatment for the broken arm for

two weeks. Y.Y. also told the physician’s assistant that L.M. had been abusing her

for five years. The physician’s assistant called the police.

When a police officer arrived, Y.Y. told him that L.M. had broken her arm.

She also stated that L.M. had sexually assaulted her the previous night. The officer

took Y.Y. to the hospital where a sexual assault examination was performed. Y.Y.

1
To protect the privacy of the parties involved in this appeal, we identify the
children and appellants by initials only. See Tex. FAM. CODE ANN. § 109.002(d)
(Vernon Supp. 2011).
2
told medical personnel at the hospital that L.M. had sexually assaulted her and had

been abusing her for five years.

After the examination, Y.Y. was taken to the Brenham police station and

spoke with an investigator, Sergeant D. Gaskamp. Y.Y. told him that L.M. had

sexually assaulted her. She stated that the assault had occurred in Brenham at the

home of L.M.’s mother. Y.Y. also told the officer that the sexual assault had

occurred in front of their two minor children, I.M. and L.M., Jr. At the time, I.M.

was three years old and L.M., Jr. was 10 months old. Sergeant Gaskamp assisted

Y.Y. in obtaining a protective order against L.M. in Washington County where the

assaults occurred. Y.Y. also obtained a protective order against L.M. in Grimes

County, where the couple resided.

Y.Y. then met with the victim services coordinator for the Brenham Police

Department. The coordinator assisted Y.Y. in filling out a crime victim’s

compensation application. In the application, Y.Y. detailed the recent and past

incidences of abuse by L.M., including information that L.M. had broken her nose

in 2007 when the couple lived in California.

Because of the allegations of domestic violence, the Department of Family

and Protective Services (“the Department”) was notified. A caseworker with the

Department, Juanita Smith, contacted L.M. about Y.Y.’s domestic abuse

allegations. L.M. denied the allegations stating that Y.Y. was lying.

3
 Smith also spoke with Y.Y. She confirmed that L.M. had broken her arm

and sexually assaulted her. Y.Y. also stated that L.M. had assaulted her when they

lived in California. Y.Y. said that, in the past, L.M. would abuse her then

apologize. After a couple of months, the abuse would resume.

Smith told Y.Y. that the Department was concerned about Y.Y.’s and L.M.’s

two children. Smith explained to Y.Y. that it was unlikely that she could protect

the children from abuse if she could not protect herself. Smith further explained

that witnessing domestic violence is also detrimental to the children’s emotional

well being. Smith advised Y.Y. not to return to the relationship with L.M.

Smith provided Y.Y. with information regarding a domestic violence shelter

and how to obtain financial assistance for her children. Y.Y. said that she and the

children were staying with her sister. Y.Y. assured Smith that she would not return

to L.M. or permit the children to be with him. She also told Smith that she planned

to divorce L.M. Based on these representations by Y.Y., Smith’s concerns were

alleviated.

L.M. was arrested for assaulting Y.Y. and placed in jail. Sergeant Gaskamp

appeared before the grand jury regarding the sexual assault allegations against

L.M. Y.Y. did not appear before the grand jury.

L.M. was released from jail on November 20, 2009. Thereafter, the

Department learned of L.M.’s release and that Y.Y. had reconciled with him.

4
After learning this information, the Department sought and obtained temporary

sole managing conservatorship of Y.Y.’s children, I.M. and L.M., Jr. The

Department placed the children in foster care.

In January 2010, the Washington County district attorney’s office filed a

motion to dismiss the criminal assault case against L.M. on the ground that Y.Y.

had requested the dismissal. The court in which the criminal action was pending

granted the motion.

Also in January 2010, the Department devised a family service plan for L.M.

and Y.Y. The trial court signed an order approving the plan. When the service

plan was developed, the Department’s goal was family reunification; that is, to

reunite Y.Y. and L.M. with their two children. Included in the service plan was a

requirement that L.M. attend a program for the perpetrators of domestic violence.

L.M. refused to participate in the program because it required him to admit to the

abuse allegations, which he denied.

By March 2010, Y.Y. openly admitted to the Department that she had

resumed her relationship with L.M. At that point, Y.Y. denied her earlier

allegations that L.M. had broken her arm and sexually assaulted her. Y.Y. claimed

that she had lied about the abuse.

In April 2010, the Department changed its goal from solely family

reunification to a goal of adoption of the two children by a non-relative, concurrent

5
with the goal of family reunification. The Department cited several reasons for the

change: (1) the past domestic abuse; (2) the couple’s reconciliation; (3) Y.Y.’s

change in her story regarding the reported domestic violence; and (4) L.M.’s

failure to participate in the batterer intervention prevention program. The

Department was concerned that the cycle of domestic violence would continue

between Y.Y. and L.M. and that Y.Y. could not be protective of the children.

In its petition seeking to terminate the parent-child relationship, the

Department alleged that Y.Y. and L.M. “had committed one or more . . . acts or

omissions” as defined by Family Code section 161.001(1) to support termination

of the parent-child relationship between each parent and I.M. and L.M., Jr. The

Department sought termination of Y.Y.’s and L.M.’s parental rights under

paragraphs D and E of section 161.001(1), both of which describe acts of

endangerment.2 Specifically, the Department alleged that Y.Y. and L.M. had

“knowingly placed or knowingly allowed the children to remain in conditions or

surroundings which endanger the physical or emotional well-being of the children”

and had “engaged in conduct or knowingly placed the children with persons who

engaged in conduct which endangers the physical or emotional well-being of the

children.”3 The Department also alleged that Y.Y. and L.M. had failed to comply

2
TEX. FAM. CODE ANN. § 161.001(1)(D), (E) (Vernon Supp. 2011).
3
See id.
6
with provisions of a court order—the family service plan—which specifically

established the actions necessary for the parent to obtain the return of the children,

in violation of subsection 161.001(1)(O).4

In October 2010, Y.Y. gave birth to a third child, T.M. Alleging the same

grounds as it had in the suit involving I.M. and L.M., Jr., the Department filed a

new suit seeking to terminate Y.Y.’s and L.M.’s parental rights to T.M.

The two suits were tried together to a jury in December 2010. The

Department presented the testimony of medical personnel, police officers, case

workers, and counselors who had spoken with Y.Y. regarding her report that L.M.

had broken her arm and sexually assaulted her. When asked, each witness testified

that Y.Y.’s report had appeared credible. A number of the witnesses testified that

Y.Y. had reported that L.M. had been abusing her for a number of years. Several

of the witnesses also stated that Y.Y. had reported that L.M. had broken her nose

when the couple lived in California, resulting in the involvement of law

enforcement there.

The Department also introduced documentary evidence describing L.M.’s

recent and past abuse of Y.Y. This included photographs of Y.Y. taken at the

Brenham Police station when she reported the assaults. The Department

introduced the photographs through Sergeant Gaskamp. In the photographs, Y.Y.

4
See TEX. FAM. CODE ANN. § 161.001(1)(O).
7
is seen with bruises on her body, which Sergeant Gaskamp testified were

consistent with the assaults described by Y.Y.

Y.Y. and L.M. testified at trial. L.M. testified that he had not broken Y.Y.’s

arm or sexually assaulted her. Y.Y. stated that she had lied when she made the

report. She testified that she had made the false accusations because she was upset

with L.M. and thought that he was seeing another woman.

Y.Y. explained her broken arm by testifying that it occurred when she hit

L.M. from behind, and he turned around to defend himself. She stated, when L.M.

had turned around, he had raised his arm in defense. She had hit his arm with her

arm causing the bone in her arm to break. Y.Y. testified that the bruises on her

body seen in the photographs had been caused by the cast she had worn on her

broken arm. She stated that the scratches on her face, seen in the photographs, had

been caused by L.M., Jr.

Incorporating the jury’s findings, the trial court rendered judgment

terminating the parent-child relationships (1) between Y.Y. and her three children,

I.M., L.M., Jr., and T.M. and (2) between the children and L.M. The judgment

recites that the trial court found, by clear and convincing evidence, that Y.Y. and

L.M. had engaged in conduct as defined in Family Code subsections

161.001(1)(D), (E), and (O). In this regard, the judgment provides that each parent

had

8
 knowingly placed or knowingly allowed the children to remain in
conditions or surroundings which endanger the physical or emotional
well-being of the children [TEX. FAM. CODE ANN. § 161.001(1)(D)];

engaged in conduct or knowingly placed the children with persons
who engaged in conduct which endangers the physical or emotional
well-being of the children [TEX. FAM. CODE ANN. § 161.001(1)(E)];

failed to comply with the provisions of a court order that specifically
established the actions necessary for the [parent] to obtain the return
of the children who have been in the permanent or temporary
managing conservatorship of the Department of Family and Protective
Services for not less than nine months as a result of the children’s
removal from the parent under Chapter 262 for the abuse or neglect of
the children [TEX. FAM. CODE ANN. § 161.001(1)(O)].

The judgment further recites that the trial court determined by clear and

convincing evidence that termination of the parent-child relationships was in the

children’s best interest. The trial court also appointed the Department as sole

managing conservator of the children.

Evidentiary Rulings

In their first three issues, Y.Y. and L.M. (hereinafter collectively referred to

as “Appellants”) challenge evidentiary rulings allowing the admission of evidence

offered by the Department.

A. Standard of Review

We review the admission of evidence for an abuse of discretion. See In re

J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). The test for abuse of discretion is

9
whether the trial court acted without reference to any guiding rules or principles.

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

B. Analysis

1. Caseworker Report and Affidavit

In their first issue, Appellants contend that the trial court abused its

discretion by admitting the investigative report and supporting affidavit of Juanita

Smith, the Department caseworker who conducted the initial investigation

following Y.Y.’s report of domestic abuse. The report and affidavit were filed

with the trial court and offered to support the initial emergency removal of the

children from their parents’ custody.

At trial, Appellants asserted hearsay objections to the admission of the report

and the affidavit. With respect to the affidavit, Appellants did not dispute that the

document fell within the business records exception to the hearsay rule. See TEX.

R. EVID. 803(6). Instead, Y.Y.’s attorney initially objected, “There’s hearsay

contained, hearsay statements within the affidavit itself.” Y.Y.’s attorney

thereafter stated as follows:

My objection to the [] business record, it’s not the document itself. I
understand it is a business record; however, does not make hearsay
statements contained within that hearsay admissible because they’re
still hearsay statements. Even though the document itself may be
admissible, the statements contained in them are not necessarily
admissible.

10
L.M. joined the objection. With respect to the report, Y.Y. asserted only that it is a

“hearsay document” and L.M. stated, “I object to the hearsay.”

“A blanket hearsay objection that does not identify which parts of a

document contain hearsay is not sufficiently specific to preserve error with respect

to those parts.” In re M.N., No. 11–10–00129–CV, 2011 WL 917837, at *1 (Tex.

App.—Eastland Mar. 17, 2011, no pet.) (mem. op.) (citing Flores v. City of

Liberty, 318 S.W.3d 551, 560 (Tex. App.—Beaumont 2010, no pet.); see In re

Estate of Ward, No. 10–11–00003–CV, 2011 WL 3720829, at *3 (Tex. App.—

Waco Aug. 24, 2011, pet. denied) (mem. op.). At trial, Appellants did not

specifically identify the statements in the affidavit that they claim were

impermissible hearsay. Thus, Appellants did not preserve their complaint that the

affidavit or the report contained hearsay statements. See M.N., 2011 WL 917837,

at *1.

Moreover, to the extent that error was preserved, a general objection to

evidence as a whole, which does not point out specifically the objectionable

portion, is properly overruled if any part of that evidence is admissible. See Speier

v. Webster Coll., 616 S.W.2d 617, 619 (Tex. 1981); Lawrence v. Geico Gen. Ins.

Co., No. 01–07–00873–CV, 2009 WL 1886177, at *5 (Tex. App.—Houston [1st

Dist.] July 2, 2009, no pet.) (mem. op.). Appellants do not contend that the

11
affidavit or the report, as a whole, was inadmissible. Appellants agree that the

affidavit falls within the business records exception to the hearsay rule.

Assuming that the documents contain some hearsay statements, a review of

the affidavit and the report shows that each also contains non-hearsay statements

by Smith. These statements include background information about the

Department’s involvement in the case, Smith actions to investigate the abuse

allegations, and her personal observations. Because portions of the affidavit and

the report were admissible non-hearsay evidence, and Appellants did not

specifically point out the alleged hearsay statements within the documents, the trial

court did not abuse its discretion by overruling Appellants’ objection. See Speier,

616 S.W.2d at 619; Lawrence, 2009 WL 1886177, at *5.

We overrule Appellants’ first issue.

2. California Police Report

In their second issue, Appellants contend that the trial court erred by

admitting a police report from California involving the report of domestic violence

made by Y.Y. against L.M. to Irvine, California police in 2007. The report

contains a narrative section written by the investigating police officer dispatched to

speak with Y.Y. In that section, the investigating officer states that Y.Y. told him

that L.M. had hit her in the face with his fist and choked her when she refused to

give him her paycheck. Y.Y. also told the officer that L.M. had hit her before

12
causing black eyes and bruises. The report also describes the officer’s arrest of

L.M., who denied hitting Y.Y. The report indicates that the officer assisted Y.Y. in

obtaining an emergency protective order against L.M.

The report includes a statement by Y.Y.’s co-worker. The co-worker told

police that Y.Y. had arrived at work upset, stating that L.M. had hit her. The co-

worker had encouraged Y.Y. to call the police.

Appellants objected to the admission of the police report on the grounds that

it contained hearsay statements and improper conclusions drawn by the authoring

police officer. The Department asserted that the report was admissible under the

public records and business records exceptions to the hearsay rule. See TEX. R.

EVID. 803(6), (8).

With regard to the public records exception, Rule 803(8) reads as follows:

Public Records and Reports. Records, reports, statements, or data
compilations, in any form, of public offices or agencies setting forth:

(A) the activities of the office or agency;

(B) matters observed pursuant to duty imposed by law as to which
matters there was a duty to report, excluding in criminal cases matters
observed by police officers and other law enforcement personnel; or

(C) in civil cases as to any party and in criminal cases as against the
state, factual findings resulting from an investigation made pursuant to
authority granted by law;

unless the sources of information or other circumstances indicate lack
of trustworthiness.

13
TEX. R. EVID. 803(8)(B).

Appellants contend that the report did not qualify as a public record

exception. We disagree.

The report described the activities of the police department, involved matters

observed pursuant to a duty imposed by law as to which there was a duty to report,

and contained factual findings resulting from an investigation made pursuant to

authority granted by law. See id. The exclusion of matters observed by police

officers and other law enforcement personnel, as found in subpart (B), applies only

to criminal proceedings; thus, the exclusion does not apply here. See id.; Corrales

v. Dep’t of Family & Protective Servs., 155 S.W.3d 478, 486 (Tex. App.—El Paso

2004, no pet.). In sum, the police report was admissible as a public record. See

Corrales, 155 S.W.3d at 486.

On appeal, Appellants assert that the report was inadmissible because it

contains “statements made by people other than the speakers.” The report does

contain the statement of Y.Y.’s co-worker, which does not qualify as a public

record. See Sherbin v. Dean Word Co., No. 03–09–00053–CV, 2010 WL

2698761, *5 (Tex. App.—Austin July 9, 2010, no pet.) (mem. op.) (“Texas courts

have held that witness statements in a police officer’s file do not qualify under the

public-records exception set forth in Rule 803(8)”). Nonetheless, Appellants did

not specifically indicate, either in the trial court or on appeal, which statements

14
they contend are inadmissible. As discussed supra, a general objection to evidence

as a whole, which does not point out specifically the portion objected to, is

properly overruled if any part of that evidence is admissible. Lawrence, 2009 WL

1886177, at *5 (citing Speier, 616 S.W.2d at 619). Because much of the police

report was admissible under the public record exception, and Appellants did not

specifically indicate which portions of the report were not admissible, we conclude

that the trial court did not abuse its discretion by overruling Appellants’ objections

to the police report. See Speier, 616 S.W.2d at 619; Lawrence, 2009 WL 1886177,

at *5; see also Corrales, 155 S.W.3d at 486.

We overrule Appellants’ second issue.

3. Testimony Regarding L.M.’s Drug Use

In their third issue, Appellants contend that the trial court erred by admitting

testimony by Sergeant Gaskamp in which he repeated a statement made to him by

L.M.’s sister. Sergeant Gaskamp testified that the sister had stopped him on the

street and stated to him “that her brother [L.M.] has a bad drug problem and that he

is no good for the child. Said that if he would take a blood test that he wouldn’t

pass it.” Appellants objected that the testimony contained inadmissible hearsay.

The trial court overruled the objection and allowed the testimony.

Even if the trial court abused its discretion in admitting the testimony,

reversal is warranted “only if the error probably caused the rendition of an

15
improper judgment.” Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d

231, 234 (Tex. 2007); see TEX. R. APP. P. 44.1(a)(1). “We review the entire

record, and require the complaining party to demonstrate that the judgment turns

on the particular evidence admitted.” Nissan Motor Co. v. Armstrong, 145 S.W.3d

131, 144 (Tex. 2004). “Thus, if erroneously admitted or excluded evidence was

crucial to a key issue, the error was likely harmful.” Reliance Steel & Aluminum

Co. v. Sevcik, 267 S.W.3d 867, 873 (Tex. 2008).

The erroneous admission is harmless if the evidence is merely cumulative of

evidence admitted elsewhere at trial. Nissan Motor Co., 145 S.W.3d at 144.

“Application of this rule requires an assessment of whether the subsequently

admitted evidence is sufficiently similar to the objected-to evidence so as to render

admission of the objected-to evidence harmless.” In re E.A.K., 192 S.W.3d 133,

148 (Tex. App.—Houston [14th Dist.] 2006, pet. denied.)

In this case, Sergeant Gaskamp’s testimony regarding what L.M.’s sister had

told him was cumulative of other evidence. In the crime victims’ compensation

application, Y.Y. stated that she had decided to report the recent assaults by L.M.

“because I am scare[d] and I feel my children are in danger because [L.M.] drinks

a lot and uses drugs.” The application was admitted without objection by

Appellants. The Department also offered Y.Y.’s written statement given to police.

In the statement, Y.Y. reported that L.M. had used drugs in front of the children,

16
bought drugs with their food stamps, and forced her and the children to accompany

him when he purchased drugs. Another of the Department’s witnesses—an

employee with the organization appointed as the children’s guardian ad litem—

testified that Y.Y. told her that L.M. used drugs.

In addition, Sergeant’s Gaskamps’s testimony repeating the sister’s

statement was not crucial to the central issue in this case. The Department’s

representative at trial testified that the Department had changed its goal from solely

family reunification to non-relative adoption because of the domestic violence

issues. The Department did not rely on L.M.’s drug use as a primary reason for the

termination, and it was not emphasized by the Department at trial. Rather, the

Department emphasized the long history of domestic violence, the negative effect

it had on the children, Appellants’ failure to acknowledge the domestic violence,

and the likelihood that the abuse would continue because Appellants had

reconciled.

Moreover, the evidence regarding the domestic abuse was disturbing and

extensive, overshadowing the evidence related to L.M.’s drug use. Lastly, the

effect of the testimony regarding the sister’s statement that L.M. would fail a drug

screen test was lessened by evidence at trial that L.M. had passed five drug

screenings during the time that the children were in the Department custody.

17
 Assuming that the admission of the testimony was in error, we conclude that

Sergeant Gaskamp’s testimony regarding the sister’s statement probably did not

cause the rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1).

Thus, we hold that any error in admitting the testimony was harmless.

We overrule Appellants’ third issue.

Sufficiency of the Evidence to Support Termination

In their fourth issue, Appellants assert that the evidence was legally and

factually insufficient to support the termination of their parental rights to their

three children. 5

5
The Department contends that Appellants failed to preserve their legal sufficiency
challenge because they did not move for instructed verdict, move for judgment
notwithstanding the verdict, object to the submission of a jury question, or move
to disregard the jury’s answer to a vital question. See T.O. Stanley Boot Co., Inc.
v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex. 1992). The Department asserts
that Appellants did not preserve their factual sufficiency challenge because L.M.
did not adequately raise his factual sufficiency challenge in his motion for new
trial, and Y.Y. did not file a motion for new trial. See TEX. R. CIV. P. 324(b)(2);
Cecil v. Smith, 804 S.W.2d 509, 510 (Tex. 1991). Each appellant did raise a
sufficiency of the evidence challenge in his and her respective statement of
appellate points filed in the trial court. Although not a motion, the statement of
points arguably alerted the trial court that Appellants sought to challenge the
sufficiency of the evidence to support the judgment of termination. See Smith v.
Tex. Dep’t of Protective & Regulatory Servs., No. 03–02–00598–CV, 2003 WL
22096141, at *6 (Tex. App.—Austin Sept. 11, 2003, no pet.) (mem. op.)
(concluding that filing of statement of points adequate to preserve factual
sufficiency challenge). Assuming without deciding that we may consider
Appellants’ sufficiency claims, we conclude, as discussed infra, that there was
sufficient evidence to support termination in this case. See Mason v. Tex. Dep’t of
Protective & Regulatory Servs., No. 03–11–00205–CV, 2012 WL 1810620, at * 8,
(Tex. App.—Austin May 17, 2012, no pet. h.) (mem. op.) (assuming without
deciding that sufficiency challenge preserved and affirming termination order).
18
A. Burden of Proof and Standards of Review

The burden of proof at trial in parental-termination cases is by clear and

convincing evidence. TEX. FAM.CODE ANN. § 161.001; In re J.F.C., 96 S.W.3d

256, 263 (Tex. 2002). Section 161.001 of the Family Code provides the method by

which a court may involuntarily terminate the parent-child relationship. See TEX.

FAM. CODE. ANN. § 161.001. Under this section, a court may order the termination

of the parent-child relationship if the court finds, by clear and convincing evidence,

that (1) one or more of the acts enumerated in section 161.001(1) was committed

and (2) termination is in the best interest of the child. Id. “Only one predicate

finding under section 161.001(1) is necessary to support a judgment of termination

when there is also a finding that termination is in the child’s best interest.” In re

A.V., 113 S.W.3d 355, 362 (Tex. 2003).

“‘Clear and convincing evidence’ means the measure or degree of proof that

will produce in the mind of the trier of fact a firm belief or conviction as to the

truth of the allegations sought to be established.” TEX. FAM. CODE. ANN.

§ 101.007 (Vernon 2008); J.F.C., 96 S.W.3d at 264. This heightened burden of

proof results in a heightened standard of review.

When determining legal sufficiency, we review all the evidence in the light

most favorable to the finding “to determine whether a reasonable trier of fact could

have formed a firm belief or conviction that its finding was true.” J.F.C., 96

19
S.W.3d at 266. To give appropriate deference to the fact finder’s conclusions, we

must assume that the fact finder resolved disputed facts in favor of its finding if a

reasonable fact finder could do so. Id. We disregard all evidence that a reasonable

fact finder could have disbelieved or found to have been incredible. Id. This does

not mean that we must disregard all evidence that does not support the finding. Id.

The disregard of undisputed facts that do not support the finding could skew the

analysis of whether there is clear and convincing evidence. Id. Therefore, in

conducting a legal-sufficiency review in a parental-termination case, we must

consider all of the evidence, not only that which favors the verdict. See City of

Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005).

In determining a factual-sufficiency point, the higher burden of proof in

termination cases also alters the appellate standard of review. In re C.H., 89

S.W.3d 17, 26 (Tex. 2002). “[A] finding that must be based on clear and

convincing evidence cannot be viewed on appeal the same as one that may be

sustained on a mere preponderance.” Id. at 25. In considering whether evidence

rises to the level of being clear and convincing, we must consider whether the

evidence is sufficient to reasonably form in the mind of the fact finder a firm belief

or conviction as to the truth of the allegation sought to be established. Id. We

consider whether disputed evidence is such that a reasonable fact finder could not

have resolved that disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at

20
266. “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 fact

finder could not reasonably have formed a firm belief or conviction, then the

evidence is factually insufficient.” Id.

The natural rights that exist between parents and their children are of

constitutional dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).

Therefore, termination proceedings should be strictly scrutinized, and the

involuntary termination statutes should be strictly construed in favor of the parent.

Id. at 20–21. However, “[j]ust 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.” C.H., 89 S.W.3d at 26.

B. Sufficiency of Evidence to Support Predicate Findings Under 161.001(1)

On appeal, Appellants do not specifically challenge each statutory predicate

finding; rather, Appellants globally discuss why the evidence does not support

termination.6 The Department sought termination of Appellants’ parental rights to

their children based on the following three grounds for termination listed in section

161.001(1):

6
As briefed, we construe Appellants’ sufficiency challenge to be a challenge only
to the section 161.001(1) predicate findings supporting the judgment and not to the
best interest determination. Appellants make no mention of the best interest
finding in their brief.
21
 The court may order termination of the parent-child relationship if the
court finds by clear and convincing evidence:

(1) that the parent has:

...

(D) knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or emotional
well-being of the child;

(E) engaged in conduct or knowingly placed the child with persons
who engaged in conduct which endangers the physical or emotional
well-being of the child;

...

(O) failed to comply with the provisions of a court order that
specifically established the actions necessary for the parent to obtain
the return of the child who has been in the permanent or temporary
managing conservatorship of the Department of Family and Protective
Services for not less than nine months as a result of the child's
removal from the parent under Chapter 262 for the abuse or neglect of
the child;

....

TEX. FAM. CODE ANN. § 161.001.

The charge instructed the jury that, for the parent-child relationship to be

terminated between Appellants and their children, one of the events identified in

subsections 161.001(D), (E), or (O) must by proven be clear and convincing

evidence. For each parent, the jury was asked one question regarding termination:

“Should the parent-child relationship between [parent] and the children, [I.M.],

22
[L.M., Jr.], and [T.M.], be terminated?” The jury answered “yes” for each parent

with respect to each child.

In its final order of termination, the trial court expressly rendered judgment

on the jury’s verdict, including a finding that each of the three section 161.001(1)

predicates alleged by the Department had been proven. This included findings that

the acts of endangerment, described in subsections D and E, had been proven.

With regard to those findings, the trial court determined that L.M. and Y.Y.

knowingly placed or knowingly allowed the children to remain in conditions or

surroundings which endanger the physical or emotional well-being of the children.

See TEX. FAM. CODE ANN. § 161.001(1)(D). The court also determined that each

parent had engaged in conduct or knowingly placed the children with persons who

engaged in conduct which endangers the physical or emotional well-being of the

children. See id. § 161.001(1)(E).

We begin by determining whether the evidence was legally and factually

sufficient to support termination under the subsection E endangerment finding.

To “endanger” means to expose a child to loss or injury or to jeopardize a

child’s emotional or physical health. Walker v. Tex. Dep’t of Family & Protective

Servs., 312 S.W.3d 608, 616 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).

The term means “more than a threat of metaphysical injury or the possible ill

effects of a less-than-ideal family environment.” Tex. Dep’t of Human Servs. v.

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Boyd, 727 S.W.2d 531, 533 (Tex. 1987). “Rather, ‘endanger’ means to expose to

loss or injury; to jeopardize.” Id.

When determining whether the conduct of the parent has endangered the

child’s well-being under subsection E, we look exclusively to the parent’s conduct,

including actions, omissions, and failures to act. Williams v. Williams, 150 S.W.3d

436, 450 (Tex. App.—Austin 2004, pet. denied). Termination under subsection E

must be based on more than a single act or omission—the evidence must

demonstrate a voluntary, deliberate, and conscious course of conduct by the parent.

see Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex. App.—Houston [1st Dist.] 2010,

pet. denied) (“The relevant inquiry is whether evidence exists that a parental course

of conduct endangered the child’s physical or emotional well-being.”).

“Although ‘endanger’ means more than a threat of metaphysical injury or

the possible ill effects of a less-than-ideal environment, it is not necessary that the

conduct be directed at the child or that the child actually suffers injury.” In re

T.N., 180 S.W.3d 376, 383 (Tex. App.—Amarillo 2005, no pet.) (citing In re M.C.,

917 S.W.2d 268, 269 (Tex. 1996); see also In re J.O.A., 283 S.W.3d 336, 345

(Tex. 2009) (holding that endangering conduct is not limited to actions directed

toward child); Jordan, 325 S.W.3d at 723 (holding that danger to child need not be

established as independent proposition and may be inferred from parental

misconduct even if conduct is not directed at child and child suffers no actual

24
injury). Danger to the child’s well-being may be inferred from parental

misconduct alone, and courts may look at parental conduct both before and after

the child’s birth. In re D.C., No. 01–11–00387–CV, 2012 WL 682289, at *9 (Tex.

App.—Houston [1st Dist.] Mar. 1, 2012, pet. denied) (mem. op.); see Boyd, 727

S.W.2d at 534.

As a general rule, subjecting a child to a life of uncertainty and instability

endangers the child’s physical and emotional well-being. In re J.O.A., 283 S.W.3d

at 345 n.4; In re D.C., 2012 WL 682289, at *9; see also Jordan, 325 S.W.3d at 724

(“Abusive and violent criminal conduct by a parent can produce an environment

that endangers the well-being of a child.”). Evidence of how a parent has treated

another child or spouse is relevant to a determination of whether a course of

conduct under section E has been established. Jordan, 325 S.W.3d at 724 (citing

In re D.T., 34 S.W.3d 625, 636–37 (Tex. App.—Fort Worth 2000, pet. denied)).

Texas courts have determined that evidence of children’s exposure to domestic

violence is supportive of an endangerment finding. L.B. v. Tex. Dep’t of Family &

Protective Servs., No. 03-09-00429-CV, 2010 WL 1404608, at *5 (Tex. App.—

Austin Apr. 9, 2010, no pet.) (mem. op.); see, e.g., In re M.R., 243 S.W.3d 807,

819 (Tex. App.—Fort Worth 2007, no pet.) (considering fact that mother “exposed

her children to domestic violence,” including incident where mother was

“smacked” in front of child, as evidence of endangerment under subsection E); In

25
re J.J.S., 272 S.W.3d 74, 79 (Tex. App.—Waco 2008, pet. denied) (upholding

endangerment after trial court found that mother “conducted herself in a manner,

namely her abusive relationships, which exposed her children to a home where

physical violence was present”); In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—

Houston [14th Dist.] 2003, no pet.) (“Thus, the trial court could have considered

the domestic violence . . . as evidence of endangerment to [the child].”).

Here, the Department presented ample evidence that I.M. and L.M., Jr. were

exposed to domestic violence while in the care of Y.Y. and L.M. The evidence

showed that, in September 2009, Y.Y. had a broken arm. Y.Y. reported to hospital

personnel, the police, and caseworkers with the Department that she received the

broken arm while L.M. was hitting her in the head, and she raised her arm to

defend herself. Y.Y. stated that her arm had been broken for two weeks, but L.M.

had refused to allow her to seek medical care.

Y.Y. also reported that L.M. had sexually assaulted her while she had a

broken arm. The evidence at trial showed that the sexual assault occurred in front

of her children. L.M. reported that, at the time of the sexual assault, L.M. had told

her that she was his property. Preceding the sexual assault, L.M. also threatened to

kill their children if she did not have sex with him.

The Department also introduced photographs depicting the bruising on

Y.Y.’s body. Y.Y. reported to the police that the bruising was caused by L.M.

26
The nurse, who performed Y.Y.’s sexual assault examination, testified that Y.Y.

had bruising on her “upper arms where it looked like someone had put their thumb

into her arms to hold her down approximately the size of a thumbprint.” Sergeant

Gaskamp testified that Y.Y.’s injuries were consistent with the assaults described

by Y.Y.

The evidence also indicated that the domestic violence had been recurring.

A number of the Department’s witnesses testified that Y.Y. stated that L.M. had

been abusing her for five years. Juanita Smith, a Department caseworker, testified

that Y.Y. had stated that, when Y.Y. would threaten to leave him, L.M. would

apologize and the abuse would stop for a few months, but then it would begin

again.

Y.Y. also reported to a number of the Department’s witnesses that L.M. had

broken her nose in 2007 when the couple lived in California. This was confirmed

not only by the Irvine, California police report but also by Y.Y.’s medical records

from California and the California application for an emergency protective order

admitted at trial.

The Department presented the testimony of the psychologist who had

evaluated Y.Y. and L.M. in January 2010. He testified that he had concluded that

Y.Y. had been physically and sexually abused. The psychologist testified that it is

27
very common for a victim to return to her abuser, explaining that it is a cycle of

abuse.

As Appellants point out, Y.Y. recanted her abuse claims, and L.M. testified

that the abuse allegations were false. Nonetheless, in termination cases, like

elsewhere, it is within the sole province of the jury to weigh the credibility of

witnesses. See In re S.L., 188 S.W.3d 388, 394 (Tex. App.—Dallas 2006, no pet.)

(citing Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003)

(stating fact finder “is the sole judge of the credibility of witnesses and the weight

to be given to their testimony”)). Thus, the jury was entitled to believe Y.Y.’s

earlier claims of abuse and to disbelieve her later recantation.

The Department also presented evidence that living in a home with domestic

violence is detrimental to a child’s physical and emotional well-being. The

evaluating psychologist testified that “tremendous” emotional damage may be

done to a child living in a home with domestic violence. He stated that girls who

witness such violence often grow up to seek out abusive men, and boys who

witness domestic violence may grow up to be abusers. Such children are also at

risk for depression and other psychological disorders. The psychologist further

testified that the object of the domestic violence will often switch from the mother

to the children.

28
 The psychologist stated that L.M. had an antisocial personality, also known

as a criminal personality.7 Because of this personality, the psychologist was not

optimistic that L.M.’s behavior would change, even with therapy. He noted that

L.M. did not seem motivated to change. The Department also presented evidence

that L.M. failed to complete the battering intervention prevention program as

required by the service plan.

In addition, the Department presented the testimony of the licensed therapist

who had counseled Y.Y. following the removal of the children. She testified that

children, who live in a home with domestic violence, are at risk to be physically

abused. The therapist also stated that such children are at risk for depression and

eating and sleeping disorders. She testified that she counseled Y.Y. about the

dangers to her children of staying in an abusive relationship. When Y.Y. began

crying and stated that she loved L.M., the therapist told her that she needed to love

her children more.

Juanita Smith also testified that she counseled Y.Y. about the risks to the

children if she remained with L.M. Smith told Y.Y. that, because she could not

protect herself from abuse, she could not protect her children from harm.

In their brief, Appellants cite evidence that they assert weighs against the

termination findings. Appellants point out that Y.Y. is from Mexico and speaks

7
Although not emphasized by the Department, the evidence showed that L.M. had
been convicted of several burglaries in the 10 year period before trial.
29
English as a second language. They contend that cultural and language barriers

resulted in her making a false report against L.M. To refute this claim, the

Department elicited testimony from numerous witnesses who indicated that Y.Y.

appeared to understand English well and also spoke English well enough to

communicate effectively with each witness.

Appellants also point out that two therapists, who had counseled L.M.

during the months preceding trial, testified that L.M.’s behavior and attitude had

improved. And Appellants point out that the record shows that Y.Y. had

completed her service plan requirements. Appellants argue that they are being

penalized for reconciling and for attempting to reunite their family.

Appellants are correct that evidence exists in the record that weighs against

the termination findings. Nonetheless, evidence cannot be read in isolation; it must

be read in the context of the entire record. It is undisputed that Y.Y. has chosen to

return to L.M. The record contains evidence from which the jury could reasonably

infer that L.M. has abused Y.Y. for years, he will continue to assault Y.Y., and

Y.Y. will not be able to protect her children from being harmed physically,

psychologically, and emotionally by the abuse. See Jordan, 325 S.W.3d at 724

(“Evidence that a person has engaged in abusive conduct in the past permits an

inference that the person will continue violent behavior in the future.”).

30
 Given the record, we conclude that the evidence, viewed in the light most

favorable to the subsection 161.001(1)(E) finding, was sufficiently clear and

convincing that a reasonable fact finder could have formed a firm belief or

conviction that Appellants engaged in conduct or knowingly placed the children

with persons who engaged in conduct which endangers the physical or emotional

well-being of the children. We further conclude that, viewed in light of the entire

record, any disputed evidence could have been reconciled in favor of the section

161.001(1)(E) finding or was not so significant that the fact finder could not

reasonably have formed a firm belief or conviction that the elements of subsection

E were shown. Accordingly, we hold that the evidence was legally and factually

sufficient to support the section 161.001(1)(E) finding as to each parent.8

We overrule Appellant’s fourth issue.

8
The same evidence that supports a finding of endangerment under subsection E
also supports the trial court’s finding under subsection D that Appellants’ conduct
subjected the children to “conditions or surroundings which endanger the physical or
emotional well-being of the children.” See TEX. FAM. CODE ANN. § 161.001(1)(D); L.B.
v. Tex. Dep’t of Family & Protective Servs., No. 03-09-00429-CV, 2010 WL 1404608, at
*5 n.13 (Tex. App.—Austin Apr. 9, 2010, no pet.) (mem. op.); see also In re M.R.J.M.,
280 S.W.3d 494, 503 (Tex. App.—Fort Worth 2009, no pet.) (explaining that “evidence
pertaining to subsections D and E is interrelated”); In re M.R., 243 S.W.3d 807, 819 (Tex.
App.—Fort Worth 2007, no pet.) (holding that evidence of exposure to domestic violence
and failure to complete service plan was sufficient to satisfy both subsections (D) and
(E)). Having determined that the evidence was legally and factually sufficient to support
termination based on subsections D and E, we need not determine whether the evidence
was sufficient to support a finding under subsection O. See In re A.V., 113 S.W.3d 355,
362 (Tex. 2003).
31
 Ineffective Assistance of Counsel

In their fifth issue, Appellants assert that they were not provided effective

assistance of counsel at trial. Appellants list, in cursory fashion, nine alleged

deficiencies with respect to counsels’ trial performance. Appellants do not include

any substantive analysis or discussion of the record in support of their contentions.

See TEX. R. APP. P. 38.1(i) (requiring an appellant’s brief to contain a clear and

concise argument for the contentions made, with appropriate citations to authorities

and to the record). We conclude that Appellants have failed to properly brief their

ineffective assistance of counsel claim; thus, it is waived. See In re J.R.H., No.

11–09–00321–CV, 2010 WL 5093772, at *3 (Tex. App.—Eastland Dec. 2, 2010,

no pet.) (mem. op.) (holding, in termination of parental rights case, that issue

waived because brief lacked adequate analysis and discussion of issue).

We overrule Appellants’ fifth issue.

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley
Justice

Panel consists of Justices Higley, Sharp, and Huddle.

32