in the Interest of D.G., K.G., H.M.G., Children

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-15-00025-CV
IN THE INTEREST OF D.G., K.G., H.M.G., CHILDREN
On Appeal from the County Court at Law No. 1
Gregg County, Texas
Trial Court No. 2014-0872-CCL1
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
After many years of abusing controlled substances, Becky and Bill lost their parental rights
to their young children, D.G., K.G., and H.M.G.,1 as the outcome of a jury trial in Gregg County.
On appeal, Becky and Bill argue (A) that the evidence is legally and factually insufficient to
support the finding that termination was in the best interests of the children, (B) that it was error
to deny a mistrial after alleged juror misconduct, (C) that it was error to disallow cross-examination
of the allegedly offending juror, (D) that it was error to not instruct the jury panel and jury with
the instructions required by Rule 226a,2 and (E) that it was error to submit a broad form issue that
encompassed in a single issue both the statutory grounds for termination and the best interests of
the children. We affirm the judgment of the trial court because (1) sufficient evidence supports
the best-interest finding, (2) neither mistrial nor cross-examination of the juror was required, (3)
any error in failing to give the instructions required by Rule 226a was waived, and (4) no jury-
charge error was preserved.
(1) Sufficient Evidence Supports the Best-Interest Finding
Texas courts have historically shown great respect for the biological bond between parent
and child, recognizing that “‘[t]he natural right which exists between parents and their children is
one of constitutional dimensions.’” In re J.W.T., 872 S.W.2d 189, 194–95 (Tex. 1994) (quoting
Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)). Indeed, parents have a fundamental right to
1
We will refer to appellants as “Becky” and “Bill” and the children as “D.G.,” “K.G.,” and “H.M.G.” See TEX. R.
APP. P. 9.8. When the children were removed in May 2014, D.G. was eight, K.G. was seven, and H.M.G. was three
years old.
2
See TEX. R. CIV. P. 226a. Although the briefs of Becky and Bill cite this rule as “Rule 222a,” it is Rule 226a of the
Texas Rules of Civil Procedure that prescribes the instructions required to be given to the jury panel and jury.
2
make decisions concerning “the care, custody, and control of their children.” Troxel v. Granville, 530
U.S. 57, 65 (2000). “Because the termination of parental rights implicates fundamental interests, a
higher standard of proof—clear and convincing evidence—is required at trial.” In re A.B., 437 S.W.3d
498, 502 (Tex. 2014). This Court is therefore required to “engage in an exacting review of the entire
record to determine if the evidence is . . . sufficient to support the termination of parental rights.” Id.
at 500. “‘[I]nvoluntary termination statutes are strictly construed in favor of the parent.’” In re
S.K.A., 236 S.W.3d 875, 900 (Tex. App.—Texarkana 2007, pet. denied) (quoting Holick v. State,
685 S.W.2d 18, 20 (Tex. 1985)).
To terminate parental rights, the fact-finder must find, by clear and convincing evidence,
that the parent has engaged in at least one statutory ground for termination 3 and that termination
is in the child’s best interest. TEX. FAM. CODE ANN. § 161.001 (West 2014); In re E.N.C., 384
S.W.3d 796, 798 (Tex. 2012). “Clear and convincing evidence” is that “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 (West 2014); see In re J.O.A., 283
S.W.3d 336, 344 (Tex. 2009). This standard of proof necessarily affects our review of the
evidence.
In our legal sufficiency review, we consider all the evidence in the light most favorable to
the findings to determine whether the fact-finder reasonably could have formed a firm belief or
conviction that the grounds for termination were proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex.
3
Becky and Bill do not challenge the sufficiency of the evidence supporting the finding that they engaged in at least
one statutory ground for termination.
3
2005) (per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.). We
assume the jury, acting as fact-finder, resolved disputed facts in favor of the finding, if a reasonable
fact-finder could do so, and disregarded evidence that the fact-finder could have reasonably
disbelieved or the credibility of which reasonably could be doubted. J.P.B., 180 S.W.3d at 573.
In our review for factual sufficiency of the evidence, we give due consideration to evidence
the jury could have reasonably found to be clear and convincing. In re H.R.M., 209 S.W.3d 105,
109 (Tex. 2006) (per curiam). We consider only that evidence the fact-finder reasonably could
have found to be clear and convincing and determine if, from the evidence, the fact-finder could
have reasonably formed “‘a firm belief or conviction about the truth of the . . . allegations.’” Id.
(quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex.
2002)). “If, in light of the entire record, the disputed evidence that a reasonable factfinder could
not have credited in favor of the finding is so significant that a factfinder could not reasonably
have formed a firm belief or conviction, then the evidence is factually insufficient.” J.F.C., 96
S.W.3d at 266. “[I]n making this determination,” we must undertake “‘an exacting review of the
entire record with a healthy regard for the constitutional interests at stake.’” A.B., 437 S.W.3d at
503 (quoting C.H., 89 S.W.3d at 26).
Despite the profound constitutional interests at stake in a proceeding to terminate parental
rights, “‘the rights of natural parents are not absolute; protection of the child is paramount.’” In re
A.V., 113 S.W.3d 355, 361 (Tex. 2003) (quoting J.W.T., 872 S.W.2d at 195; see In re M.S., 115
S.W.3d 534, 547 (Tex. 2003)). “A child’s emotional and physical interests must not be sacrificed
4
merely to preserve parental rights.” In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.—Texarkana
2015, no pet.) (citing C.H., 89 S.W.3d at 26).
We turn to the evidence in the record relevant to the best-interest finding.
Before the removal of the children in this case in April 2014, Becky and Bill had been
investigated by the Texas Department of Family and Protective Services (the Department) on two
other occasions, each involving the parents’ use of illegal substances. In 2007, when K.G. was
born, Becky reported to hospital personnel that she had been smoking marihuana, had used cocaine
within the last two weeks, and had taken a pain pill supplied by a friend, all while pregnant with
K.G. At that time, the Department sent her for an evaluation, which resulted in her entering
outpatient treatment for substance abuse. Becky completed the drug rehabilitation services
provided by the Department, and the Department ended its involvement. After eight months,
Becky began smoking marihuana again and continued smoking it daily until H.M.G. was born in
2011. When H.M.G. was born, both he and Becky tested positive for marihuana, and the
Department began providing drug rehabilitation, parenting classes, and family and individual
counseling to Becky and Bill. Becky and Bill completed these services, and the Department again
terminated its involvement. Becky testified that she then began using alcohol, and, eventually,
methamphetamine. She said that she smoked methamphetamine in her house while her children
were present, although she denied smoking in front of them.
5
In April 2014, the Department received a report of possible neglect of the children and
illegal drug use by Becky and Bill. At the time, Bill was incarcerated.4 In an initial investigation
on April 14, Linda Womack, an investigator for the Department, found Becky at her house in
Gladewater with H.M.G. Although H.M.G. was dirty, it appeared to be from his playing outside.
She determined that the utilities were working and that there were no immediate safety hazards in
the house, other than cigarette butts scattered about the house. Womack was concerned that some
of Becky’s relatives were also there to move Becky’s grandfather, who was her main source of
support, away from the house. She was also concerned that Bill’s cousin, Curtis, was also present
at the house. Womack knew that the Department had opened a case against Curtis because of his
illegal drug use and neglect of his children. After Becky agreed to a drug test, Womack left.
Womack was not able to locate Becky again until April 25, when she again found her at her house
in Gladewater with K.G. and H.M.G. At that time, they discussed Becky’s current drug usage;
Becky admitted that she might have trace amounts of marihuana in her system.
As a result of Becky’s drug test, Womack concluded that Becky’s drug usage placed the
children in immediate danger.5 After filing a petition requesting immediate removal on May 1,
2014, Womack removed the children from the home. She testified that, on the day of removal, the
children had dirt caked on them, wore dirty clothes, and appeared to not have bathed for a couple
of days. She also said that, when she saw them before that day, they appeared to be clean.
4
The evidence shows that Bill has two convictions for assault causing bodily injury to a family member, a conviction
for felony burglary of a building, and a conviction for theft over $500.00. At the time of the final hearing, Bill was
incarcerated, having been arrested for aggravated robbery and being a felon in possession of a firearm.
5
Although not in evidence, Womack’s affidavit attached to the petition for removal indicates that Becky tested positive
on April 25 for marihuana, methamphetamine, and amphetamine.
6
At trial, Becky admitted that her children tested positive for methamphetamine and
attributed this to secondhand smoke resulting from the lack of doors inside her house. Becky
testified that she used methamphetamine daily, until she began to try to get off the drug after this
case began. Even then, she acknowledged telling Dr. Donald Winsted, III, a licensed psychiatrist,
that she had used methamphetamine every other day and marihuana every day until late December,
2014. Nevertheless, at trial, she asserted that, after her inpatient treatment, she had stopped using
these drugs, except for a couple of relapses.
Becky completed seventeen days of an inpatient treatment program in August 2014.6 She
testified that her counselor wanted her to go to an outpatient program and to attend Alcoholics
Anonymous (AA) meetings, but that she only attended six or seven AA meetings. In January or
February 2015, Becky began an outpatient drug treatment program called Beginnings.7 Becky
admitted that she used marihuana one time after starting the outpatient program. Becky explained
that she returned to drug use after completing the drug rehabilitation programs in 2007 and 2011
because she needed help and she did not understand the seriousness of her drug use. In trying to
explain her continued periodic use of illegal drugs after attending the 2014 program, Becky stated,
“[E]verybody has relapses.”
6
Although Becky testified that she completed the inpatient program, Dionne Jordan, the Department’s caseworker,
testified that the inpatient program usually lasts twenty-eight to thirty days. The certificate of completion introduced
by Becky merely states that she “successfully completed 17 days of the Adult Women Residential Treatment
Program.”
7
Trisha Thompson, a licensed chemical dependency counselor intern with Beginnings, testified that Becky had
completed seventy-five percent of her treatment program at the time of trial.
7
Becky testified that, at the time of trial, she was living with Bill’s mother in an apartment
in Longview.8 When asked how long she had lived there, she simply said “off and on.” She
testified that, although it is a small apartment, if the children were returned to her, they would live
with her and Bill’s mother in the apartment. However, she also testified that she is taking care of
Bill’s mother, who had just returned home from having a leg amputated. She testified that she is
paid by Outreach Services to cook and clean four hours a day for Bill’s mother. She claimed that
she is looking for other clients to whom she could provide these same services. The only other
income Becky has had during the pendency of the case was from working at Fred’s for a short
time in the summer of 2014, where she brought home a total of $356.00, and from cleaning houses.
She admitted that she has not made any child support payments as required under the trial court’s
temporary order.
Becky explained that, although she and the children had been living in a four-bedroom
house in Gladewater when the children were removed, the house was currently unsuitable because
it was infested with bugs and mice and had holes in the walls. It is unclear when Becky moved
from the Gladewater house. Jordan testified that, when she went to pick up Becky and Bill for a
visit with their children on July 15, she could find nobody at the apparently vacant house. She
said that Becky called a couple of weeks later, reported that she was no longer staying at the
Gladewater house, and failed to provide Jordan a new address. Becky did not give Jordan her new
address until a permanency hearing in October, when she claimed to be living in an apartment on
McKaig Street in Gladewater—an address Jordan was unable to verify as Becky’s residence.
8
Although she refers to Bill’s mother as her mother-in-law, Becky and Bill have never been married.
8
Becky also testified that she has been staying in Longview since November or December 2014.
However, Jordan testified that, in a face-to-face meeting in December 2014, Becky claimed to be
staying at the apartment in Gladewater. After Jordan told her that she had been by the apartment
and found no one living there, Becky did not provide another address where she was staying.
It is uncontested that Becky completed the parenting classes required under her service
plan and attended all hearings in the case. Since she was without transportation, she walked to the
classes and hearings in Longview, even when she was living in Gladewater. Becky completed her
psychological evaluation with Winsted in February 2015. She and Bill began their individual and
family counseling in February, and they were in the process of completing it at the time of trial.
Bill also completed parenting classes and had a drug assessment as required under the service plan.
Bill testified that he has been living in Liberty City for a couple of months. Before that, he
had had no residence for almost a year.9 He admitted that he is not listed as the father of the
children on their birth certificates and that he had never acknowledged paternity until the initial
hearing in this case. Bill admitted that he has used marihuana and other illegal drugs, including
PCP. He also admitted smoking marihuana in the Gladewater house where Becky and the children
lived. He explained that the children know how to roll a marihuana cigarette because he has rolled
them in front of them. Bill also admitted using methamphetamine once or twice a month up until
a couple of months before trial. He testified that he does not have a place for the children to live.
He also admitted that he has not made any child support payments as required by the temporary
orders. Bill testified that, when he was home with the children, he made sure they were bathed,
9
Apparently, for 145 days of this time, Bill was incarcerated in the Gregg County Jail.
9
had food to eat, and had a place to sleep. He stated that he and the children have a great bond, that
D.G. clings to him, and that K.G. clings to Becky. He testified that he is involved in their
schooling, teaches them manners, and disciplines them. Bill could remember the month, but not
the day, of D.G.’s and K.G.’s birthdays, but had no knowledge of the month or day of H.G’s
birthday. He also admitted that he had not called the children or sent them cards on their birthdays
since their removal.
The temporary orders allowed Becky and Bill supervised visitation with the children for
one hour per week. Nevertheless, in the eleven months between the entry of the temporary orders
and the final hearing, Becky made only six, and Bill only three, visits with the children. Becky
visited the children twice in June, one time each in July, August, and September, and once in
March. Bill visited the children twice in June and once in March. Becky and Bill attributed the
lack of visitations to the unavailability of transportation.10 Becky explained that the children were
placed with a foster mother in Nacogdoches, that she and Bill lived in Gladewater, that they would
meet in Henderson for visitation, and that neither she nor Bill had a car. Initially, their caseworker,
Jordan, would pick them up in Gladewater and transport them to visit the children. However,
Jordan refused to pick them up in Gladewater after they had a misunderstanding regarding the time
she would pick them up and they missed each other. After that, Jordan required them to come to
the Department’s office in Longview to get a ride to Henderson. Becky said she found a ride to
Longview a couple of times after that, but then it was hard to find a ride. Becky admitted, however,
10
Becky and Bill also contended the lack of visits was ameliorated by Becky calling the children every night until
December. However, in December, Jordan learned that the parents were telling their children that they would be
coming home soon, which began causing behavioral and emotional problems in the children when it did not happen.
At that time, Jordan instructed the foster mother to no longer accept calls from the parents.
10
that she had been living in Longview since November or December and that Longview has a public
bus system.
Jordan testified that her supervisor transported Becky and Bill from Gladewater to their
first visit in June. Jordan picked them up in Gladewater for their second visit in June. She
explained that the next visit was scheduled for July 15, but, when she went to their house at the
appointed time, no one came out. She remained at the house, which looked vacant, for fifteen
minutes before leaving. A couple of weeks later, Becky called and requested another visit, and
Jordan arranged to transport her from the Department’s office to Henderson. Jordan testified that
Becky had a three-hour visit with the children in Henderson at the end of August. Although Jordan
supervised the visit, Becky obtained transportation from a friend. The next time Becky requested
a visit was the end of September. Since Jordan was out of state, she arranged for the foster mother
to supervise the visit. Jordan testified that, after September, neither parent contacted her requesting
a visit. Jordan later learned that, in March, the Court Appointed Special Advocates for Children
(CASA) representative for the children, Tamika Wesley, transported Becky and Bill to Mount
Enterprise for a visit.
Wesley has worked as the program director for CASA for eight years and has worked with
over 200 families. Wesley testified that she met Becky and Bill at the fourteen-day hearing in May
2014 and has seen them at permanency conferences at the Department offices. She also ran into
them at a grocery store on December 1, 2014. At that time, she expressed to them her concern that
they were not visiting the children and offered to get them help to visit them. She testified that, at
a February meeting regarding the upcoming trial, she was very vocal about Becky and Bill not
11
visiting, and essentially abandoning, their children. After that meeting, and after her attorney had
instructed her to do so, Becky contacted Jordan and asked her if she would take her on a visit to
see the children, which she did. Jordan and Wesley both testified that, during their visits with the
children, Becky and Bill exhibited appropriate parenting skills and that there was loving interaction
between them and their children.
Wesley testified that the children love their parents and desire to return home. She also
testified that, out of her 200 cases, she has had less than one percent of the children say they did
not want to go home. Although she believes the children will be devastated if they do not see their
parents again, Wesley testified that there are programs and services to help them through the
process. She also testified that it was highly probable that the children would be adopted since
they are good, loving, and young.11 She opined that termination would be in the best interest of
the children since they would be in a “forever” family if adopted and have permanence, stability,
safety, guidance, consistency, and positive role models. She testified that parents who are on a
strong path for family reunification immediately work their services, remain drug free, and visit
their children. She pointed out that Bill is not a good role model, considering his incarcerations
and that he has not worked his services, and that Becky has not worked her services, continues to
return to drug use, and will likely get back together with Bill.
Tommie Smith testified that, when the children first came to live with her, H.M.G. could
not speak clearly, put on his own clothes, or eat with a fork and spoon. Now he is in speech therapy
Jordan testified that the Department’s permanency plan for the children is a non-relatives adoption. Although
11
acknowledging that there was a possibility that the children could be separately adopted, Womack testified that the
Department will always seek to have them adopted together. She also testified that she is familiar with several families
who are waiting to adopt sibling groups.
12
and is talking better, he can dress himself, and he eats at the table with utensils. She has taught
the older children to do household chores and has taught them good manners. She testified that,
when their parents stopped coming for visits, they were very upset, angry, acting out, and fighting
with each other, and that H.M.G. would cry for his mother. About a month after the children came
to live with Smith, she started them in counseling with Latoya Walker, a licensed professional
counselor. Smith testified that, initially, D.G. and K.G. did well in school, but around
Thanksgiving, began displaying serious behavior problems, which have gotten progressively
worse. She said that, after the last visit with their parents in March, the children were crying
because they wanted to go home with them. She also testified that the children love their parents
and will be upset if they never get to see them again. Smith testified that she loves the children,
that they love her, and that, although she is not looking to adopt them, she would keep them as
long as she could until an adoptive family is found.
Walker began working with the children on June 12, 2014. She works with K.G. on anger
and anxiety issues and helps him to improve his communication skills and in building trust. She
works with D.G. on these same issues, which she relates to instability. She also testified that,
although D.G. praises his parents a lot, he is very reluctant to talk about them or to say anything
negative about them or about his past history. She testified that there is trauma associated with
removal from the parents, but that the long-term result of removal may be better than the
alternative. Walker also explained her role in overcoming this trauma and building new
relationships. She testified that the children do very well with their foster mother and that they are
very caring and respectful toward her. She said the home has rules and boundaries and is very
13
stable and conducive to the children’s growth. The children seem very happy and have adjusted
well. Walker testified that she has noticed a difference in the emotional state of the children in the
last several months. D.G. particularly had gotten upset when his parents had missed a visit, and
his misbehaviors had increased, especially at school. In December, the children started saying that
they were going home in February, had built up their expectations, and were upset when it did not
happen. They said they had been told, she believes by their mother, that they were going home
and that they still have that expectation. Walker further testified that trust is one of the main factors
in building relationships and that, if a parent is not consistent and honest with a child, it carries
over to mistrust of others.
She testified regarding the adverse effects of a lack of attachment and how a safe, secure
environment is necessary to the development of attachments. By observing them in the foster
home, she believes they will be able to form positive relationships through a continuation of the
stability and security they are being provided.
Walker also testified that she has not been able to determine the effect their prior home life
has had on the children. She said they love and speak highly of their parents, but are reluctant to
speak anything negative. They do not speak about their past life, except about the dirty home and
rodents in the home. They have never acknowledged that there was drug use in the home, and
Walker testified that it is hard to tell if they are keeping secrets.
Walker believes the children need consistency and stability and that removal from the
parents is in their best interest. She agreed that there would be some degree of devastation if the
parental rights were terminated and that there are potential long-term consequences of breaking
14
the parental bond. However, she also stated that there can be both negative and positive
consequences. She testified that the children are in a stable home now and that the parent’s failure
to alleviate their deficiencies and their continued inconsistency would not be healthy for the
children.
Winsted testified that he performed a psychological evaluation of Becky in February 2014.
Becky had a history of abuse or neglect and using controlled substances, demonstrated poor
impulse control, and had some emotional issues that would affect her parenting skills. Her
expressed parenting attitudes were generally acceptable, so that potential physical abuse of the
children was not a concern. Becky self-reported to him that she had been an alcoholic and that she
had used marihuana daily and methamphetamine every other day until late December 2014. She
also reported that her support system was AA and Narcotics Anonymous (NA). Since she had
completed her parenting classes, Winsted recommended individual counseling for six months to
two years, continuing her aftercare substance-abuse treatment with random drug screenings, and
consultation with a medical doctor for treatment of her anxiety and depression. He testified that,
in his opinion, Becky took the mandate to complete her services seriously, that she was active and
participated in her parenting classes, and that she was very open, honest, and engaged.
Winsted further testified that children need to feel safe, which happens when parents
reliably and consistently meet their needs. If parents are making and failing to fulfill significant
promises, such as “you’re going to come home,” the children’s ability to trust and their sense of
safety is eroded. He also testified that allowing the children to remain too long in limbo, such as
foster care, also erodes their trust and sense of safety, affects their ability to learn, and results in
15
increasing anxiety, stress, and behavioral problems. On cross-examination, he testified that the
same type of issues arise when a parent’s parental rights are terminated. Winsted also testified at
length regarding the process of forming attachment bonds between a child and his or her parent,
particularly his or her biological mother, and the effects of the severance of that bond resulting
from termination. He also testified, however, that the problems arising from this severance can be
resolved if there is appropriate intervention, like helping the child work through grief and loss
issues and helping to facilitate new attachment bonds with a new family.
In considering whether termination is in the best interest of the child, “[t]here is a strong
presumption that keeping a child with a parent is in the child’s best interest.” In re J.A.S., Jr.,
No. 13-12-00612-CV, 2013 WL 782692, at *7 (Tex. App.—Corpus Christi Feb. 28, 2013, pet.
denied) (mem. op.) (citing In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam)).
“Termination ‘can never be justified without the most solid and substantial reasons.’” In re N.L.D.,
412 S.W.3d 810, 822 (Tex. App.—Texarkana 2013, no pet.) (quoting Wiley v. Spratlan, 543
S.W.2d 349, 352 (Tex. 1976)). Even if a parent’s behavior “‘may reasonably suggest that a child
would be better off with a new family, the best interest standard does not permit termination merely
because a child might be better off living elsewhere.’” In re A.H., 414 S.W.3d 802, 807 (Tex.
App.—San Antonio 2013, no pet.) (quoting In re W.C., 98 S.W.3d 753, 766 (Tex. App.—Fort
Worth 2003, no pet.)).
In determining the best interests of the child, courts consider the following Holley factors:
(1) the desires of the child, (2) the emotional and physical needs of the child now
and in the future, (3) the emotional and physical danger to the child now and in the
future, (4) the parental abilities of the individuals seeking custody, (5) the programs
available to assist these individuals, (6) the plans for the child by these individuals,
16
(7) the stability of the home, (8) the acts or omissions of the parent that may indicate
the existing parent-child relationship is not a proper one, and (9) any excuse for the
acts or omissions of the parent.
N.L.D., 412 S.W.3d at 818–19 (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)); see
E.N.C., 384 S.W.3d 796, 807 (Tex. 2012); see also TEX. FAM. CODE ANN. § 263.307(b) (West
2014). It is not necessary to prove all of these factors as a condition precedent to terminating
parental rights. C.H., 89 S.W.3d at 27; N.L.D., 412 S.W.3d at 819. Evidence relating to a single
factor may suffice in a particular situation to support a finding that termination is in the best
interests of the child. In re K.S., 420 S.W.3d 852, 855 (Tex. App.—Texarkana 2014, no pet.)
(citing In re J.O.C., 47 S.W.3d 108, 115 (Tex. App.—Waco 2001, no pet.), disapproved on other
grounds by In re J.F.C., 96 S.W.3d 256 (Tex. 2002)). When considering the child’s best interest,
we may take into account that a parent is unable to provide adequate care for a child, lacks
parenting skills, or exercises poor judgment. In re C.A.J., 122 S.W.3d 888, 893 (Tex. App.—Fort
Worth 2003, no pet.). Parental drug abuse, which reflects poor judgment, is also a factor that may
be considered when determining the child’s best interest. In re M.R., 243 S.W.3d 807, 820 (Tex.
App.—Fort Worth 2007, no pet.). Further, the amount of contact between the parent and child,
the parent’s failure to provide financial and emotional support, continuing criminal history and
past performance as a parent are all relevant in determining the child’s best interests. See C.H., 89
S.W.3d at 28.
It is undisputed that there is a strong emotional bond between these children and their
natural parents and that they have expressed their desire to return to their parents. Their expressed
17
desire is ameliorated somewhat by their young ages, especially in the case of H.M.G.
Nevertheless, this factor weighs against termination.
Becky’s drug use while she was pregnant with K.G. and H.M.G. placed them in physical
danger. Her continued use of methamphetamine in the home placed all three children in physical
danger before removal. Although at trial Becky disputed her prior statements to Winsted that she
continued to use methamphetamine every other day and marihuana daily for seven months after
the children were removed, a rational jury could believe her prior statements and conclude,
considering her past history of returning to drug use, that returning the children to her would also
place them in danger in the future. The evidence also showed that the foster home is safe and
stable and that the physical needs of the children are being met. This factor weighs strongly in
favor of termination.
It is also undisputed that the longer the children have remained in foster care, the more
severe their emotional and behavioral problems have become. There was conflicting testimony
regarding what might be the cause of these problems. Winsted testified that these problems can
be caused in children by the severance of the parental bond resulting from removal, but can also
be caused by the parents continually making significant promises that they do not keep. Both the
foster mother and the children’s counselor testified concerning the devastating effects on the
children’s emotional health resulting from Becky and Bill’s failure to show up for visits and their
broken promises that the children would get to go home. Significantly, the foster mother testified
that the children’s emotional and behavioral problems began when Becky and Bill stopped visiting
them. A rational jury could conclude that the emotional and behavioral problems they are currently
18
experiencing result primarily from Becky and Bill’s acts and omissions. In addition, there was
considerable testimony regarding the problems that children experience as a result of the
termination of parental rights. However, both Winsted and the children’s counselor testified that
these problems can be overcome with appropriate counseling. The children’s counselor testified
that she will continue to help the children deal with their loss and form new relationships. Further,
the evidence showed that neither Becky nor Bill had a stable residence or income, that neither
provided financial support for the children after removal, and that both continued their use of
illegal substances for seven months after removal. The second, fifth, and seventh factors also
weigh heavily in favor of termination.
The evidence shows that Becky and Bill generally demonstrated appropriate parenting
skills and loving interaction on their visits with the children. However, Bill’s continuing criminal
history, his drug use in the presence of the children, his failure to provide financial support for the
children, and his minimal efforts to visit the children demonstrate his lack of good judgment, lack
of parenting skills, and inability to place the needs of his children above his own. Likewise,
Becky’s drug use while she was pregnant and in the presence of the children, her continual relapses
after treatment, her failure to provide financial support for the children, and her minimal efforts to
visit the children demonstrate her lack of good judgment and inability to place the needs of the
children above her own. Although she blamed her failure to visit on her lack of transportation, she
offered no explanation for why she did not visit the children after she moved to Longview in
November or December where transportation was readily available. The fourth, eighth, and ninth
factors also weigh heavily in favor of termination.
19
Finally, Bill expressed no plans for the children. Becky’s plans were to house the children
in a small apartment where she had been living “off and on.” Although she maintained at trial that
she was working four hours a day and was looking for other clients, she offered no firm plan for
how she would financially support the children. In contrast, the children are currently in a stable,
safe foster home where their emotional and physical needs are being met and where they can
remain until adopted. Although no adoptive family has been identified, the Department plans to
seek to place the children together with an adoptive family. This factor also weighs in favor of
termination.
We find that there is legally and factually sufficient evidence to support the jury’s finding
that termination of the parental rights of Becky and Bill is in the best interests of the children. We
overrule these points of error.
(2) Neither Mistrial Nor Cross-Examination of the Juror Was Required
Becky and Bill argue that the trial court erred in denying their motion for mistrial for
alleged juror misconduct and in denying their request to cross-examine the allegedly offending
juror. Becky and Bill claim juror 17 withheld information regarding his relationship with Sedelia
Nelson, who has been identified as an investigator for the Gregg County District Attorney’s
Office,12 and that they were denied the opportunity to fully explore that relationship by cross-
examining the juror. The State argues that, since the juror was not asked during voir dire whether
he knew Nelson, Becky and Bill have failed to show any misconduct. We agree.
Although the parties agree that Nelson is an investigator for the Gregg County District Attorney’s Office, she was
12
never identified as such to the jury panel.
20
The issue of juror misconduct arose at the conclusion of the first day of testimony when,
as the jury was filing out, juror 17 made a sort of hand motion toward Nelson, smiled, and may
have said a word or two to her. Nelson backed up and did not say anything in response. This brief
interaction prompted a motion for mistrial, alleging that juror 17 had failed to disclose a
relationship with Nelson. The motion was not supported by affidavit. After a considerable
exchange regarding Becky and Bill’s specific allegation of misconduct, 13 the parties agreed that
the preliminary determination for the trial court would be whether Nelson was a friend or family
member of juror 17. The trial court then questioned juror 17, who claimed that Nelson was neither
a friend nor a family member.14 Based on this testimony, the trial court denied the motion for
mistrial and the request that the parents be allowed to question juror 17.
To preserve a complaint about jury misconduct, a party must typically file a motion for
new trial, supported by an affidavit. TEX. R. CIV. P. 324(b)(1), 327(a); Welsh v. Welsh, 905 S.W.2d
615, 618 (Tex. App.—Houston [14th] 1995, writ denied). When a party moves for a mistrial for
jury misconduct and the trial court hears evidence of the alleged misconduct during trial, we have
previously treated the motion for mistrial as a motion for new trial. See Kansas City S. Ry. Co. v.
Chaffin, 658 S.W.2d 186, 189 (Tex. App.—Texarkana 1983, writ ref’d n.r.e.); see also In re Health
13
The record of this exchange shows that the four attorneys, although agreeing on what questions were asked during
voir dire, disagreed as to the meaning of those questions, prompting the trial judge to remark, “If four lawyers can’t
understand the question, how are we expecting a juror member to properly respond? . . . . It’s not real clear if there’s
four different viewpoints on it.”
14
Juror 17 testified that Nelson had worked at the high school as a resource officer. Although he knew her by sight,
he did not know her by name. He said that she was not a family member and that he did not consider her a friend, just
an associate. He also testified that his knowledge of her would not influence his consideration of the evidence in the
case.
21
Care Unlimited, Inc., 429 S.W.3d 600, 601–02 (Tex. 2014); Welsh, 905 S.W.2d at 618. To be
entitled to a new trial due to juror misconduct, “the movant must establish that (1) the misconduct
occurred, (2) it was material, and (3) it probably caused injury.” Health Care Unlimited, Inc., 429
S.W.3d at 602 (citing TEX. R. CIV. P. 327(a)). “Whether misconduct occurred and caused injury
are questions of fact for the trial court.” Id. (citing Golden Eagle Archery, Inc. v. Jackson, 24
S.W.3d 362, 372 (Tex. 2000)). Under Rule 327(a), if a juror gives an “erroneous or incorrect
answer on voir dire examination,” a new trial may be granted. TEX. R. CIV. P. 327(a); Jefferson v.
Helen Fuller & Assocs. Health, Inc., No. 01-11-00199-CV, 2012 WL 2357431, at *8 (Tex. App.—
Houston [1st Dist.] June 21, 2012, pet. denied) (mem. op.). However, “[f]or false answers to voir
dire questions to entitle a party to a new trial, the concealment must be in response to a specific
and direct question calling for disclosure.” Jefferson, 2012 WL 2357431, at *8 (citing Wooten v.
S. Pac. Transp. Co., 928 S.W.2d 76, 79 (Tex. App.—Houston [14th Dist.] 1995, no writ)). We
will not disturb the trial court’s decision to grant or deny a new trial or mistrial, based on juror
misconduct, absent an abuse of discretion. Primrose Operating Co. v. Jones, 102 S.W.3d 188,
193 (Tex. App.—Amarillo 2003, pet. denied); Welsh, 905 S.W.2d at 618; Chaffin, 658 S.W.2d at
189.
Becky and Bill do not argue that juror 17 was individually asked any direct questions.
Rather, they argue that he had a duty to disclose his acquaintance with Nelson at three points during
voir dire: when asked whether anyone knew the attorneys, when asked whether anyone knew the
witnesses, and when asked whether anyone worked in the district attorney’s office, had family or
22
friends that worked there, or worked someplace where they had regular contact with attorneys.
We disagree.
The record shows that, at the beginning of voir dire, the trial court introduced the two
assistant district attorneys, the Department’s representative, Sogunda Strange, the CASA
representative, Tamika Wesley, and the attorneys representing Becky, Bill, and the children. The
court then asked if anyone on the jury panel knew any of them. Since Nelson was not identified
by the trial court, the juror was under no obligation to disclose that he knew her in response to the
court’s question.
Later, at the beginning of the Department’s voir dire, its counsel identified Nelson as “part
of the district attorney’s office” and stated, “She works with us, works with our office.” However,
neither the Department’s counsel, nor counsel for either Becky, Bill, or the children, ever asked
the jury panel if anyone knew Nelson. Again, since none of the attorneys specifically inquired if
anyone on the jury panel knew Nelson, no disclosure was required.
Then, during Becky’s voir dire, her counsel asked the jury panel:
Now, there’s also going to be a number of witnesses that are called to testify in this
case. I’d like to know if you know any of them personally, or perhaps your friends
or family members know them personally. If you’ve had any dealings with these
people, just please let me know. I’m going to go slow, and if you recognize any of
the names or you think you might recognize the name, please raise you card and
stand up and let me know what that relationship is.
He then read off a list of the names of the witnesses.15 However, Nelson’s name was not included
in the list. Again, no disclosure was required since Nelson was not identified among the witnesses.
15
Nelson was not a witness at the trial.
23
Finally, Becky’s attorney asked the jury panel:
Has anyone else worked in either the district attorney’s office here or another
county? Does anyone have any friends or family members that have worked in the
district attorney’s office? Has anyone worked at a place that has regular contact
with attorneys, like a courthouse? Same question about friends and family
members. Do you have any friends or family members that have had any dealings
with attorneys?
While we believe asking a jury panel multifarious questions in this manner is confusing
and would not qualify as a specific and direct question, even if we consider each question
individually, all of the questions referred to either the jury panel members’ personal experience or
that of their friends or family. None of the questions asked the jury panel if any of them were
acquainted with anyone who has worked in a district attorney’s office or who had regular contact
with attorneys. Since Nelson was not a family member of juror 17 and did not consider her a
friend, it was not misconduct for him to remain silent.
Since juror 17 was never asked a specific and direct question requiring him to disclose his
acquaintance with Nelson, the trial court did not abuse its discretion in finding that juror
misconduct had not been shown and in denying Becky and Bill’s motion for mistrial. We overrule
this point of error.
We also conclude that the trial court did not err in denying Becky and Bill’s request to
cross-examine juror 17. A motion for new trial based on juror misconduct must be supported by
affidavit. TEX. R. CIV. P. 327(a). The purpose of the affidavit requirement is to assure the trial
court that the movant will be able to support the allegations in his motion by competent proof.
In re Zimmer, Inc., 451 S.W.3d 893, 901 (Tex. App.—Dallas 2014, no pet.). The motion and
affidavit enable the trial court to “make an initial determination as to whether material misconduct
24
occurred.” Elston v. Sherman Coca-Cola & Dr. Pepper Co., 596 S.W.2d 215, 217 (Tex. Civ.
App.—Texarkana 1980, no writ) (citing Whited v. Powell, 285 S.W.2d 364 (Tex. 1956)). If
material misconduct is not shown by the affidavit, “the court need not consider evidence on the
motion.” Id. (citing Cortez v. Med. Protective Co. of Ft. Wayne, 560 S.W.2d 132 (Tex. Civ.
App.—Corpus Christi 1977, writ ref’d n.r.e.)). In this case, in the absence of supporting affidavits,
the trial court made its initial determination of whether misconduct occurred by questioning juror
17. Based on the answers it received, the trial court determined that no material misconduct had
occurred; therefore, it was under no obligation to consider additional evidence, whether through
direct or cross-examination.16 We overrule this point of error.
(3) Any Error in Failing To Give the Instructions Required by Rule 226a Was Waived
Becky and Bill also assert that the trial court erred when it failed to give the instructions to
the jury panel, and, later, to the jury after selected, as mandated by Rule 226a. See TEX. R. CIV. P.
226a. They assert, without explanation, that, since the specific instructions mandated by Rule 226a
were not given, they were denied a fair and impartial trial and that such error was fundamental
error. The State argues that any error by the trial court in failing to give these instructions is not
fundamental error and that since Becky and Bill failed to timely object to their omission by the
trial court, any error was waived. We agree.
16
We recognize, as Becky and Bill argue, that the right to cross-examine witnesses is a fundamental due process
right,“[p]rotected by both the Fourteenth Amendment to the United States Constitution and [A]rticle I, [S]ection 19,
of the Texas Constitution.” Nat’l Family Care Life Ins. Co. v. Fletcher, 57 S.W.3d 662, 666 (Tex. App.—Beaumont
2001, pet. denied). However, since they did not meet their initial burden of showing the trial court that they would be
able to support the allegations of juror misconduct, they did not establish their right to an evidentiary hearing. See
Zimmer, 451 S.W.3d at 901. Therefore, no right to cross-examination ever arose.
25
An issue is not preserved on appeal unless the record shows that it was presented to the
trial court “by a timely request, objection or motion” that “stated the grounds for the ruling that
the complaining party sought from the trial court with sufficient specificity to make the trial court
aware of the complaint, unless the specific grounds were apparent from the context.” TEX. R. APP.
P. 33.1(a)(1)(A); In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003). Further, failure to assert an
objection in the trial court based on due process, or other constitutional provisions, will not
preserve the complaint on appeal in parental rights cases. In re K.A.F., 160 S.W.3d 923, 928 (Tex.
2005); L.M.I., 119 S.W.3d at 711; Tex. Dep’t of Protective & Regulatory Servs. v. Sherry, 46
S.W.3d 857, 860–61 (Tex. 2001). “Appellate review of potentially reversible error never
presented to a trial court would undermine the Legislature’s dual intent to ensure finality in these
cases and expedite their resolution.” In re B.L.D., 113 S.W.3d 340, 353 (Tex. 2003). In addition,
although the fundamental-error doctrine provides a narrow exception to these preservation rules,17
this doctrine has not been applied in parental-rights termination cases. Id. at 350–51.
Errors relating to “the procedures of summoning, assembling, excusing, and documenting
the jury array . . . are waivable.” Mann v. Ramirez, 905 S.W.2d 275, 278 (Tex. App.—San Antonio
1995, writ denied). Further, any error by the trial court in omitting to give the instructions
mandated by Rule 226a of the Texas Rules of Civil Procedure is waived by the appellant’s failure
to timely complain of the same. Beacon Nat’l Ins. Co. v. Young, 448 S.W.2d 812, 815 (Tex. Civ.
App.—Dallas 1969, writ ref’d n.r.e.); Dealers Nat’l Ins. Co. v. Simmons, 421 S.W.2d 669, 675–
In civil cases, the fundamental-error doctrine has been applied to allow review of unpreserved error “when the record
17
on its face shows the court lacked jurisdiction,” and “certain types of error in juvenile delinquency cases.” B.L.D.,
113 S.W.3d at 350.
26
76 (Tex. Civ. App.—Houston [14th Dist.] 1967, writ ref’d n.r.e.). In this case, Becky and Bill
admit that they made no objection to the trial court’s failure to give the instructions required by
Rule 226a. In addition, the trial court gave certain instructions, albeit not all of the instructions
mandated by Rule 226a,18 to both the jury panel during voir dire and to the jury after it was seated.
After giving these instructions, the trial court asked the attorneys whether they wanted additional
admonishments or instructions to be given. On both occasions, the attorneys for Becky and Bill
answered, “No, Your Honor.” We find that Becky and Bill have not preserved any error for our
review. We overrule this point of error.
(4) No Jury-Charge Error Was Preserved
Becky and Bill also complain that the trial court erred in submitting a broad form jury issue
that encompassed both the statutory grounds for termination and best interests of the children.
Becky and Bill argue that these are separate legal questions and should be submitted in separate
issues. In a related point of error, they argue that this broad form submission was fundamental
error that violated their right to due process and that this Court should apply the egregious-harm
standard to this jury-charge error. We find that they have not preserved any jury charge error.
18
The instructions given by the trial court included the substance, but not the verbatim wording, of some of the
instructions mandated by Rule 226a of the Texas Rules of Civil Procedure.
27
The Texas Supreme Court has addressed a similar complaint. See B.L.D., 113 S.W.3d at
348–55. As in this case, the trial court in B.L.D. submitted a jury charge with two statutory grounds
alleged in the disjunctive and broad-form jury issues regarding whether the parent-child
relationships should by terminated.19 Id. at 348. Also as in this case, the appellants in B.L.D. did
not object to the form of the jury charge. Id. at 349. In B.L.D., the court of appeals reviewed the
unpreserved complaint, holding that “procedural due process concerns required review of ‘core
issues’ in the jury charge in involuntary termination cases even when the parties failed to object to
the charge at the trial court.” Id.; see In re B.L.D., 56 S.W.3d 203, 215–17 (Tex. App.—Waco
2001), rev’d, 113 S.W.3d 340 (Tex. 2003). In reversing, the Texas Supreme Court held that the
fundamental-error doctrine does not permit, and due process does not require, “appellate courts
[to] review unpreserved complaints of charge error in parental rights termination cases.” Id. at
351, 354. Since Becky and Bill failed to make a timely objection to the charge, they have failed
to preserve any error for our review. See TEX. R. APP. P. 33.1(a)(1)(A); B.L.D., 113 S.W.3d at
355. We overrule these points of error.
We affirm the judgment of the trial court.
Josh R. Morriss III
Chief Justice
Date Submitted: September 24, 2015
Date Decided: October 28, 2015
19
In this case, the jury charge alleged five statutory grounds for termination against Becky and four statutory grounds
against Bill.
28