in the Interest of S. L., a Child

NO. 12-10-00173-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN THE INTEREST § APPEAL FROM THE
OF S.L., § COUNTY COURT AT LAW
A CHILD § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Stephanie Lee1 appeals the trial court’s order terminating her parental rights. In one
issue, Lee argues that the jury charge was improper. We affirm.
BACKGROUND
Stephanie Lee is the mother of S.L., born April 12, 2007. Z.P. is S.L.’s father.2 The
Department of Family and Protective Services (the Department) filed an original petition for
protection of a child, for conservatorship, and for termination of the parent-child relationship
between both parents and S.L. After a full adversarial hearing, the trial court appointed the
Department as S.L.’s temporary managing conservator.
A jury trial began on April 26, 2010. At the close of evidence, Lee objected to the jury
charge, which included a broad form submission of the controlling question, i.e., whether the
parent-child relationship should be terminated. She alleged that the jury should, instead, be asked
to make a separate determination as to each ground for termination and then be asked whether
1
We must use an alias, i.e. a person’s initials or a fictitious name, to refer to a minor, the minor’s parent, or
other family member. See TEX. R. APP. P. 9.8(a), (b)(2). S.L.’s mother’s initials match those of her daughter. To
avoid confusion, we have adopted ―Stephanie Lee‖ as a pseudonym for S.L.’s mother.
2
On April 27, 2010, Z.P. signed an unrevoked or irrevocable affidavit of voluntary relinquishment of
parental rights to the Department of Family and Protective Services. Accordingly, on May 20, 2010, the trial court
ordered the termination of his parent-child relationship with S.L. Z.P. is not a party to this appeal.
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termination was in the child’s best interest. The trial court overruled Lee’s objection. In its
charge, the trial court instructed the jury, in part, as follows:
For the parent-child relationship in this case to be terminated with respect to [Lee], the mother of
[S.L.], it must be proven by clear and convincing evidence that at least one of the following events
has occurred:
1. [Lee] has knowingly placed or knowingly allowed the child to remain in conditions or
surroundings which endanger the physical or emotional well-being of the child;
2. [Lee] has 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;
3. [Lee] has failed to comply with the provisions of a court order that specifically established the
actions necessary for the mother to obtain the return of the child who [has] been in the
permanent or temporary managing conservatorship of the [Department] 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[.]
Further, the jury charge stated that it must be proven by clear and convincing evidence
that termination of the parent-child relationship would be in the best interest of the child, and
listed some factors to consider in determining the best interest of the child. The charge then
asked, ―Should the parent-child relationship between [Lee] and [S.L.] be terminated?‖ The jury
answered, ―Yes.‖ In accordance with the jury’s verdict, the trial court found, by clear and
convincing evidence, that Lee had engaged in one or more of the acts or omissions necessary to
support termination of her parental rights, and that termination of the parent-child relationship
between Lee and S.L. was in the child=s best interest. Therefore, the trial court ordered that the
parent-child relationship between Lee and S.L. be terminated. This appeal followed.
JURY CHARGE
In her sole issue, Lee argues that the trial court abused its discretion by overruling her
objection to the broad form submission of the parental termination question.
Complaints regarding the trial court’s charge are reviewed under an abuse of discretion
standard. Tex. Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990). An abuse of
discretion occurs when the trial court acts without reference to any guiding principles. Id. An
error in a charge is reversible only if harmful, that is, if it caused or was reasonably calculated to
cause, and probably did cause, the rendition of an improper judgment. Akin v. Santa Clara
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Land Co., Ltd., 34 S.W.3d 334, 345 (Tex. App.—San Antonio 2000, pet. denied). To determine
whether an alleged error in the jury charge is harmful, we must consider the pleadings, the
evidence presented at trial, and the charge in its entirety. Island Recreational Dev. Corp. v.
Republic of Tex. Sav. Ass’n, 710 S.W.2d 551, 555 (Tex. 1986).
In all jury cases, the trial court shall, whenever feasible, submit the cause upon broad
form questions. See TEX. R. CIV. P. 277; E.B., 802 S.W.2d at 649. In E.B., the trial court
submitted a broad form submission question to the jury in a parental rights termination suit. E.B.,
802 S.W.2d at 648; In re K.S., 76 S.W.3d 36, 48 (Tex. App.–Amarillo 2002, no pet.). The court
of appeals reversed and remanded the cause, holding that multiple alternative submissions were
proper. E.B., 802 S.W.2d at 648. In determining this issue, the Texas Supreme Court stated that
the controlling question is ―whether the parent-child relationship between the mother and [the
children] should be terminated, not what specific ground or grounds under [the family code] the
jury relied on to answer affirmatively the questions posed.‖ See id. at 649. Thus, the supreme
court held that a trial court does not abuse its discretion by using a broad form submission to ask
this controlling question in a termination case. See id.
Here, as in E.B., the jury charge tracked the statutory language of the family code in the
three grounds given to the jury as a possible basis for termination of Lee’s parental rights. See
E.B., 802 S.W.2d at 648; In re K.S., 76 S.W.3d at 49; TEX. FAM. CODE ANN. § 161.001(1)(D),
(E), (O) (Vernon Supp. 2010). Additionally, the charge instructed the jury that it must also be
proven by clear and convincing evidence that termination of the parent-child relationship would
be in the best interest of the child and listed ―some factors to consider in determining the best
interest of the child.‖ See E.B., 802 S.W.2d at 648 (citing Holley v. Adams, 544 S.W.2d 367,
371-72 (Tex. 1976)); TEX. FAM. CODE ANN. § 161.001(2) (Vernon Supp. 2010). Then, the trial
court presented the controlling question to the jury by broad form submission, i.e., whether the
parent-child relationship should be terminated. See E.B., 802 S.W.2d at 648-49.
Because the jury charge approved in E.B. is almost identical to that given in this case and
E.B. has not been overruled, we conclude that E.B. is binding on this court. See In re L.C., 145
S.W.3d 790, 795 (Tex. App.—Texarkana 2004, no pet.) (stating court bound by E.B. permitting
submission of disjunctive question regarding a parent’s predicate acts or omissions); In re K.S.,
76 S.W.3d at 49 (concluding that court is bound to follow E.B. unless it is overruled or vitiated);
In re M.C.M., 57 S.W.3d 27, 31 n.2 (Tex. App—Houston [1st Dist.] 2001, pet. denied)
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(determining that because an almost identical charge was considered and approved in E.B. which
has not been overruled, court must follow E.B.); but see In re B.L.D., 56 S.W.3d 203, 218-219
(Tex. App.—Waco 2001), rev’d on other grounds, 113 S.W.3d 340 (Tex. 2003). Therefore,
because the jury charge tracked the statutory language and then asked the controlling question,
the trial court did not abuse its discretion in overruling Lee’s objection to the jury charge and in
submitting a broad form submission question to the jury. See E.B., 802 S.W.2d at 649; In re
J.T.G., 121 S.W.3d 117, 129 (Tex. App.—Fort Worth 2003, no pet.). Accordingly, Lee’s sole
issue is overruled.
DISPOSITION
Having overruled Lee’s sole issue, we affirm the judgment of the trial court.
BRIAN T. HOYLE
Justice
Opinion delivered February 23, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
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