### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00315- CV

Crystal Spurck, Appellan t

v. Texas Depart m ent of Fam ily and P rote ctive Service s, Appellee

F ROM TH E DISTRI CT COURT O F LAMP ASAS CO UNTY, 27TH JUDICI AL DISTRICT

NO. 17,4 16, H ONO RAB LE JO E CARROLL, JUDGE P RESIDING

O P I N I O N
Cry stal Spurck appea ls from the trial court’s order terminating her pare ntal rig hts to her minor child, L .G., afte r the jury found that her rig hts should be terminated. On appea l, Spurc k
arg ues that: (1) the trial court err ed in failing to exclude the testimony of two witnesses beca use the Depa rtment failed to ide ntify the witnesses during discovery ; ( 2) the court err ed in failing to strike
L .G.’s foster pare nts’ petition t o intervene based on lack of standing ; (3) the court erre d in failing
to submit a jury char g e stating the statutory pref ere nce for place ment with a family member; (4) the evidenc e is leg ally and fac tually insufficient to show that the statutory g rounds for termination exis t; and (5) the evidence is leg ally and factually insufficient to show that termination i s i n L .G.’s best interest. We af

firm the judg ment of the trial c ourt.BACK GR OUND I n May of 2007, Spurck beg an dating L owell Gar za when she was six teen y ear s old. 1 Spurck moved in with Gar za’ s p ar ents a month later, at which time she lear ned that she was preg nant. Spurck g ave bir th to her son, L .G., in Fe bruar y of 2008. At that time G arza was in jail

2 for probation violations. Gar za was rele ased in May of 2008, and he and Spurck marrie d that J uly

. Two months afte r their marria g e, Gar za was ag ain incar cer ated for drug rela ted char g es and sent to

a drug reha

bilitation fac ility for six months. Gar za returne d from the reha bilitation fac ility in April of 2009, and a

month later Spurck g ave bir th to Garza’s da

ug hter, I .G. On Aug ust 17, 2009, ten-we ek-old I .G. died while at home with Gar za, Spurck, and
L .G. An autopsy reve aled that I .G. died from a fra cture d skull and blunt forc e trauma cause d by the pounding of

a fist on her

abdomen.

Crim inal i nvestigation in to I.G .’s death

Texas Depa

rtment of Public Safety Rang er J esus Ramos conducte d the investiga tion into I .G.’s death. First, Rang er Ramos int ervie wed Garza, who stated t hat he and S purck left I .G.

on the bed while they went outside to smoke a cig are tte, and when they returne d, I .G. was lifeless. They drove I .G. to the emer g ency room, wher e she was prono u n ce d d ead. Gar za offe red no explanation a s to what ca used I .G.’s death. Rang er Ramos then a ttended I .G.’s autopsy , wher e he lear ned the c ause of

I .G.’s death and about indications of pr ior abuse.

The fa cts rec ited here in are taken f rom testimony

and exhibits admitted at trial. 1 Spurck assumed that Gar za was L .G.’s fathe r, though subsequent g enetic testing reve aled 2 that J eff rey Cochran is L .G.’s biolog ical fa ther. 2Rang er Ramos then interviewe d Spurck about I .G.’s injuries. Rang er Ramos noted

that Spurck was uncooper ative and “ver y defe n s i v e, very emotional, when [he] started asking questions a

bout .

. . Gar za a

nd his te mper and her

rela tionship.” Rang er Ramos told Spurck about the results of the autopsy and stated “somebody murdere d y our baby and y ou and y our husband had something to do with it.” Spurck denied the acc usation, walked out of the interview , found Ga

rza in the lobby of the L ampasa s Coun t y S h er i ff ’s Offic e, and told Garza “don’t tell them any thing.” Rang er Ramos interviewe d Gar za a second t i m e, b u t Gar za ref used to cooper ate. Rang er Ramos

secur ed ar

rest wa rra nts for Ga rza and Spurck on the char g e of injury to a child. After arr esting Gar za and Spurck, Rang er Ramos conducte d his second interview of Spurck. At this interview, Spurck discussed Gar za’s temper and his drug and alcohol abuse. Rang er Ramos subsequently testified that Spurck said, “I know I should be in so much trouble for bring ing that monster home.” Rang er Ramos tes tified that Spurck admitted to knowing about Gar za’s conviction for injury to a child in 2008, though Spurck believed Gar za was innocent of that char g e. I n addition, Spurck told Range r Ramos that Gar za choked he r while she w as pre g nant with L .G.

When questioned about the night of I .G.’s death, Spurck said that I .G. was cry ing and that she offe red to watch her, but Gar za stated that “he would calm [I .G.] down.” Spurck proce eded
to take a shower, and when she returne d, she found I .G. lifeless. Spurck a nd Gar za decided not to call for an ambulanc e bec ause the y wer e af raid that a uthorities would believe Ga rza injured I .G. After concluding his se cond intervie w of Spurck, Ra ng er Ramos que stioned Garza

a third time. I nitially , Gar za specula ted that I .G.’s injuries may have been cause d by Gar za pushing
up on her leg s in a

n attempt to bur

p her. Howeve r, afte r Gar za spoke with his fathe r, he confe ssed

3to hitting I .G. at least three times, but denied fra cturing I .G.’s skull. Rang er Ramos told Spurck that

Gar za had confe ssed to hitting I .G., and Sp u rc k then told Ramos that she believed Gar za was responsible for I .G.’s skul l fra cture. Rang er Ramos noted t hat during t his final i nterview , Spurck
g rabbe d and squeezed his leg while telling him that she had not hing to do with I .G.’s injuries. Rang er Ramos b el i ev ed that this was an attempt to distract or manipulate him , and he pushed her hand awa y . Rang er Ramos rec ommended that Gar za be char g ed with murder and Spurck be char g ed “at the very least

. . . with endang erme nt to a child” beca use she knew her children wer e being hurt and “she fail[ed] to secur e their safe ty .” The criminal char g es ag ainst Spurck wer e subseq u en tly dropped f or an unspe cified r eason.

Rem oval of

L.G. and u nderlying p roce edings
T h e Depa

rtment was notified of I .G.’s death and the results of Rang er Ramos’s investiga tion. On Aug ust 19, 2009, the Depa rtment filed its orig inal petition for protec tion of then eig hteen- month old L .G., for conser vatorship of L .G., and for termination of Gar za’s and Spurck’s
pare ntal rig hts to L .G. The trial court issued an order of protec tion naming the Depa rtment as L .G.’s temporar y sole manag ing conser

vator and appointing a g uardia n ad litem a

nd attorney ad litem for
L .G. See Tex. Fam. Code Ann. §§ 107.001(2), (5) (d efining attorney ad litem and g uardia n ad litem), 153.371 (discussing rig hts of sole manag ing c onserva tor) (West 2008).

The Depa rtment place d L .G. in a foster home. That same day , L .G.’s orig inal foster
pare nts took him to the emer g ency room beca use L .G. had a diaper rash, scar s and abra sions on his body , and was exhibi ting troubling behavior

. The foster pare nts noted that L .G. was cursing , hitting dolls in the abdomen, and then placing his finge r over the doll’s mouth and say ing “shhhh.” L .G.

4was examined for signs of potential abuse. The trea ting phy sician noted that there was no evidenc e

of “re cent serious injuries,” b u t t h e old scar s and bruises “could well be consistent with

nonacc idental [si c] trauma particula rly considering the history of the fata l nonacc idental trauma in his s i b l i n g. ” Howeve r, the phy sician was ultimately unable to deter mine whether L .G.’s injuries

wer e acc idental or the result of intentional abuse. L .G. was then transfe rre d to a second foster home, wher e he still remains.

I nitially , the Depa

rtment’s perma

nency plan for L .G. was to reunify him with Spurck. Following the court-or dere d remova l, the Depa rtment cre ated a family service plan throug h which S p u rc k could work toward reg aining custody of L .G. See id. § 263.106 (West 2008). T h e p l an require d, among other things, that Spurck complete a psy cholog ical evalua tion , at tend individual counseling sessions, complete parenting classes, follow the recom m en d ati ons of her psy cholog ist and thera pist, maintain housing that is appropr iate for L .G., take responsibility for her part in L .G.’s abuse, a nd make c hang es to alleviate possible future a buse. Spurck participa ted and completed the require d activities, but her counselor noted that she sensed a “dising enuous aff ect” from Spurck throug hout their sessions. The counselor also expressed conce rns that Spurck was not rea dy to resume g uardia nship of L .G. beca

use she was still “wor king throug h” the past sexual abuse she suffe red when she was a minor and the domestic abuse she suffe red with Gar za. Simi l ar l y , h er counselor diag nosed Spurck as having “Mood disorder, Gene ralized Anxi ety Disorder , Partner Relational P ro b l em . . . Antisocial Personality Trait, Depe ndent Personality

Trait, [and] Narcissistic Personality Trait.”

5Subsequently , the Depa rtment found a repor

t that discussed the phy sical examination that L .G. rec eived when he was i n i t i al l y p l ace d with foster pare nts. The repor t discussed the 3 phy sician’s examination of L .G.’s injuries as outlined above and the phy sician’s conclusion that he

was unable to deter

mine whether the injuries wer e the result of an acc ident or abuse. This repo rt raised additional conce rns about reunify ing Spurck with L .G. Ultimately , the Depa rtment chang ed its perma nency plan for L .G. to “unre lated adoption,” seeking to terminate Spurck’s pare ntal rig hts so that L .G. could be a dopted by his curre nt foster pa

rents.

The trial I n November of 2010, the trial court commence d a final hear ing on the Depa rtment’s petition to terminate Spurck’s and J eff rey Cochran’ s pare ntal rig hts. See su p r a n . 2

. Spurck’s
g r a n d mo th e r a n d L

. G

. ’ s f

o s te r p a r e n ts in te r v e n e d in th e c a s e . S

e e T e x. F a m. Co d e A nn . § 1 0 2

. 0 0 4 ( b ) (West 2008) (noting that court may g rant c hild’s gr andpar ent or “ other person deeme d

. . . to ha ve had substantial past contac t with the child” leave to intervene in pending suit). The trial court issued

a written repor

t containing its finding s of fac t, conclusions of law, and rec ommendations. The repor t

r e c o mm e n d e d th a

t b o th p a r e n ts ’ p a r e n ta l r ig h ts to L

. G

. s h o u ld b e te r

mi n a te d

. Sp u r c k ’ s g r a n d mo th e r 4 timely filed a request for de novo hear ing before the refer ring court so that a jur

y could deter

mine whether Spurck’s rig hts should be terminated. See id. § 201.015 (West Supp

. 2 0 1 2 ) (d escr ibing
proce dure f

or re questing de novo fina l hear ing)

.

Testimony

indicates that this repor

t was initially

misfiled, but later re discovere d. 3 Cochran did not appea l the trial court’s deter mination, and the termination of his pare ntal 4 rig hts is not before us. 6A de novo hear ing befor e the jury beg an on Fe bruar y 22, 2011. This trial lasted five day s and included the testimony of over twenty witnesses. The D epar

tment called Rang er Ramos
t o t es t i fy about his investiga tion of I .G.’s death as outlined above. Spurck objected to Ran ger Ramos’s testimony

based on the Depa

rtment’s fa ilure to timely

desig nate him as a witness, which

wa s overr uled by the trial court. See Tex. R. Civ. P. 193.6(a) (excluding evidenc e t h at wa s n o t timely d i s cl o s ed unless cer tain exceptions are met). Next, the Depa rtment called L .G.’s trea ting phy sician, who testified about L .G.’s injuries and his c onclusion that he was not a ble to de termine whether the injuries wer e the r esult of abuse or an a ccide nt. The Depa rtment then called the conser vatorship worke r in L .G.’s case to discuss the Depa rtment’s investiga tion and rec ommendation. The conser vatorship worke r testified that Spurck

was motivated, that she actively participa ted in thera py , was seeking employ

ment, and improved her
pare nting skills over the course of the visitations. Howeve r, she also testified that Spurck admitted
to having trouble apply ing the skills she lear ned in her pare nting classes to her interac tions with L .G. The Depa rtment also called Spurck’s counselor, who testified that Spurck participa ted well in their sessions and that she ultimately rec ommended that Spurck be reunifie d with L .G. Finally , the Depa

rtment called Spurck as a witness. Spurck testified that on the night of I .G.’s death, she took a twenty -five minute shower while Gar za was car ing for I .G. When she left the shower, Spurck noticed that I .G. was not brea thing normally , but she suspected i t m i gh t have been the result of cong estion. Spurck then went outside to talk to Garza, who told her that I .G. had just g one to sleep. When she came back inside, Spurck “knew something was wrong ” beca use I .G.

was “cla mmy with no signs of blood on her fac e or lips

. ” S h e s t at ed that she did not call for an

7ambulance beca use she was afr aid that I .G. would have been transfe rre d among st hospitals, but she admitted that she wa s also conce rned tha t the police mig ht arre st Garza if she c alled 9-1- 1.

Spurck also discussed her domestic abuse at Gar za’s hands. She admitted that L .G. witnessed Gar za assaulting her two or three times. She also admitted that she had hear d Gar za had previously inj u re d a child, that he was on probation “for something,” but she claimed she never

rea lly knew Gar za’s criminal history

. She stated that she did eve ry thing she could to comply with the family service p l an, and that she had lear ned a lot from her counseling and pare nting classes. Spurck profe ssed her love for L .G. and stated that she was rea dy to provide her son with a loving and

car ing e nvironment.

Subsequently , the Depa

rtment ca lled Serg eant Charles Boswe ll with the L ampasa s Police Depa

rtment as a re b u t t al wi tness. Serg eant Boswe ll testified that befor e I .G.’s death, he informed Spurc k that Gar za had bee n previously arr ested for injury

to a child. Spurck objec ted to
t h e ad m ission of Serg eant Boswe ll’s testimony , claiming that his testimony did not actua lly
contra dict Spurck’s statements and that his testimony constituted unfair surprise. See id. § 193.6(a)

. The trial c ourt overr

uled Spurck’s obje ctions. Af t er the Depa

rtment conclude d its case in chief , Spurck, her g randmothe r, an d
L .G.’s foster pare nts eac h called severa l witnesses t o testify about who shoul d be allowe d to have custody of L .G. These thirteen witnesses, most of whom wer e fam i ly members or friends of the various parties, provided ample testimony about eac h party ’s ability to take ca

re of L .G. After the conclusi o n o f evidenc e, the jury found by clea r and convincing evidenc e that Spurck’s pare ntal rig hts to L .G. should be ter m i n at ed and that L .G.’s foster pare nts should be appointed as his

8manag ing conser vators. The trial court enter ed a judgme nt consistent with the jury ’s finding s. This
appea l followed.

DISCUSSIO N

Exclusion of w itnesses not identif ied in d iscover y I n her f irst issue on appea l, Spurc k asser ts that the trial court e rre d in admitting the testimony of Rang er Ramos and Serg eant Boswe ll. Specifica lly , Spurck arg ues t h at b ec ause the Depa rtment failed to r espond to he r discovery reque st f or the names and contac t information of its witnesses, the trial court should have excluded the office rs’ testimony

. See Tex. R. Civ. P. 193.6(a) (noting testimony g ener ally excluded if party fails to timely identify witness in discovery response ). We r e v ie w a tr ia l c o u

r t’ s d e c is io n to a d

mi t o r e xc lu d e e v id e n c e u

n d e r a n a b u s e - o f

- d is c r e ti o n s ta

n d a r d

. In re J.P.B. , 1 8 0 S

. W

. 3 d 5 7 0 , 575 (Tex. 2005). A court abuses its discretion if it acts without ref ere nce to any g uiding rules or principles. Carpenter v. Cimarron H y d r o carbons Corp. , 98 S.W .3d 682, 687 (Tex. 2002). We must uphold a trial court’s evidenti ar y ru l i n g i f t here is any leg itimate b a s is in th e r e c o r d to s u

p p o r t it

. D r il e x S y s
. , I n c
. v
. F lo r e s , 1 S. W. 3 d 1 1 2 , 1 1 9

– 2 0 ( T e x. 1 9 9 9 ) ( c it in g Owens-Corning Fiberglas Corp. v. Malone , 972 S.W .2d 35, 43 (Tex. 1998)).

Under the rules of civil proce dure, when a party has not timely made, amended, or supplemented a

discovery

response , the party “may not . . . offe r the testimony of a w itness (other than a named party

) who was not timely identified” unless t h e court finds that: (1) the party had g ood cause for failing to tim el y identify the witness, or (2) the failure to timely identify the witness will not unfairly surprise or unfairly pre judice the other parties. Tex. R. Civ. P. 193.6(a)

.

9A disclosure is presumed to be untimely if it was made less than thirty day s befor e trial. Id. 193.5(b).

The party seeking to introduce the evidenc e has the burden of establishing in the rec ord either g ood

ca u s e fo r t he untimely disclosure or the lack of unfair surprise and prejudice

. Id. 193.6(b). I t i s within the trial court’s discretion to deter mine whether the party has met this burden. See Alvarado

v. Farah Mfg. Co. , 830 S

. W

. 2 d 9 1 1, 914 (Tex. 1992); Allan v. Nersesova , 307 S.W .3d 564, 575 (Tex. App.—Dallas 2010, no pe t.).

I n this case , Spurck serve d a written reque st for disclosure that soug ht the identities of the Depa

rtment’s potential witnesses. See Tex. R. Civ. P. 192.3(d), 194.2(e)

. Spurck also filed

a separ ate motion to compel discovery from L .G.’s foster pare nts, which the trial court denied. The Depa rtment did not respond to Spurck’s discovery reque st, appar ently believing that the trial court denied all of Spurck’s discovery reque sts when it denied Spurck’s motion to compel discovery from the foster pare nts. At trial, when the Depa rtment attempted t o call Rang er Ramos and Serg eant 5
Bo s we ll to testify , Spurck objected, claiming that the testimony was inadmissable beca use th e Depa rtment failed to respond to her discovery reque st. See id. 193.6(a)

. I n response , the Depa rtment initially claimed that the trial court had alre ady denied Spurck’s discovery reque st in its previous order

. Howeve r, when it rea liz ed that it misunderstood the court’s previous ruling , the Depa rtment

ar gu ed t h at the testimony should not be excluded beca use Spurck was not unfairly surprised by Rang er Ramos’s testimony an d t h e Department had g ood cause for its untimely disclosure

T h e t ri al court’s order deny ing Spurck’s motion to compel is not included in the rec ord 5 befor e us, and thus it is unclea r whether the order encompa ssed Spurck’s discovery reque st from the Depa rtment. For purposes of this appea l, we assume that the court’s order applied only to Spurck’s motion to compel discovery from L .G.’s foster pare nts, and that Sp u rc k ’s d i scover y reque st that rela ted to the Depa

rtment was not rule d upon. 10of Serg eant Boswe ll. See id. 193.6(a) (1)–( 2). The trial court overr uled Spurck’s objections and allowed Range r R amos and S erg eant Boswell to testify . We will review the a dmissibi lity of ea ch witness’s testimony

separ ately

. Testimony of Ranger Ramos

Although th ere are conflicting acc ounts in the rec ord of when and how Spurck’s counsel lear

ned Rang er Ramos would be testify ing, there is no question she had knowledg e that he would testify on the Depa

rtment’s behalf

. The Depa

rtment asser

ted that Spurck’s counsel was awa re that Rang er Ramos would be testify ing for sever al months, even though the Depa rtment may not have notified Spurck in writing

. Counsel for the Depa rtment stated that he was “pre tty cer tain that [he has] been clear on who our witnesses are expected to be since the ver y first pretria l when [ he]
appea red in this ca s e. ” Fu rthermor e, the Depa rtment noted that Spurck’s attorney had been in
contac t with Rang er Ramos in the wee ks leading up to trial. During voir dire examination, Rang er Ramos testified that he h ad s p o k en t o Spurck’s counsel three wee ks prior to trial and that he provided her with transcr ipts of his inter views with Spurck and Gar za and a copy of I .G.’s autopsy
repor t. Rang er Ramos stated that during this exchang e, Spurck’s counsel asked him if he would be testify ing, and he responded that he assumed he would be. Spurck’s counsel did not ask Rang er Ramos about what his testimony might be, and told him that she would try to have Rang er Ramos’s testimony excluded. Thus, there is evidenc e that the trial court could have relied upon to conclude that Spurck’s counsel was not unfairly surprised or prejudice d by Rang er Ramos’s testimony and that she had ample opp o rt u n i t y to question him about the substance of his testimony and the scope of his

11knowledg e of the fac ts in this case . See id. 193.6(a) (2); see also Brunelle v. TXVT Ltd. P’ship , 198

S.W .3d 476, 479 (Tex. App.—Dallas 2006, no pet.) (conc luding that party not unfairly s urprised when had previous contac t wi t h witness and knew witness had knowledg e of rele vant events). Howeve r, there is no indication in the rec ord that Rang er Ramos testified in any prior proce eding s.

We note that, in a traditional civil context, this rec ord might prese nt a close call about whether the Depa

rtment car

ried it s b urden of establishing lack of unfair surprise. “Howe ver, in deter mining issues reg arding the conser vatorship of, possession of, and acc ess to a child, the court’s primary consideration is alway s the best intere st of the child. Compared to the be st interest of the child, technica l rules of pleading and prac tice are of littl e importance

. . . .” In re P.M.B. , 2 S.W .3d 618, 624 (Tex. App.—Houston [14t h Dist.] 1999, no pet.) (interna l c itations omitted) (super seded

on other g rounds); see also Taylor v. Taylor , 254 S.W .3d 527, 534 (Tex. App.—Houston [1st Dist.] 2008, no p et

. ) (n o t ing best interest of child may be fac tor in trial court’s ruling on discovery sanctions). We have rec og nized that, with reg ard to the best interest of the ch ild, “[i] t is in the court’s primary interest to have as much evidenc e b efor e it as possible.” R.H. v. Texas Dep’ t of Family & Protective Servs. , No. 03-00-00018- CV, 200 1 W L 491119, at *8 (Tex. App.—Austin May 10, 2001, pet. d en ied) (mem. op.) (conc luding trial court err ed in excluding appellant’ s g randpa rents’ testimony “[r]ega

rdless of whether the Depa rtment suffe red unfair surprise or whether appellant ha d g ood cause for” failing to respond to Depa rtment’s re quest for discove ry ).
I n this case , Rang er Ramos’s testimony addre ssed his investiga tion into I .G.’s death and Spurck’s initial failure to cooper ate with law enfor ceme nt. Given that I .G.’s death and Spurck’s init i al b ehavior wer e probative of her suitabilit y as a pare nt, the trial court could have rea sonably

12conclude d that the jury should be allowed to consider Rang er Ramo s ’s t es t i mony reg ardle ss of

whether the Department failed to t i m el y i d enti fy him as a witness. See In re P.M.B. , 2 S.W .3d at 624; see also Drilex Sys., Inc. , 1 S.W .3d at 119–20 (noting that trial court’s evidentiar y ruling should b e upheld if supported by any basis in the rec ord). There fore , we cannot say that the trial cou rt abused its discre tion in admitt ing Ra ng er Ramos’s te stimony

. See B runelle , 198 S.W .3d at 479.
Testimony of Sergeant Boswell

I n her testimony , Spurck st ated that prior to I .G.’s death, Spurck was unaw ar e t h at Gar za fac ed criminal charg es for injury to a child. The Depa rtment offe red Serg eant Boswe ll’s testimony to impeach Spurck’s p ri or t estimony and to establish that Spurck was awa re that Gar za had been char g ed with injury to a child. Serg eant Boswe ll tes tified that in 2008, while detaining Gar za and S purck for nar cotics possession, he told Spurck t hat Garza had been arrested for i njury to a child and that “ she proba bly neede d to ree valuate he r re lationship with Mr. Garza.” Spurck objected to Serg eant Boswe ll’s testimony based on untimely disclosure. See Tex. R. Civ. P. 193

. 6 (a ). I n response, the Depa rtment stated that it had only lear ned about Se r g e a n t B o s w e ll ’ s c o n v e r s a

ti o n w it h Sp u r c k th e d a y b e f o r e h e w a s c a ll e d a s a w it

n e s s . F u r th e r mo r e , the Depa rtment stated that it promptly informed Spurck’s counsel of Serg eant Boswel l’s likely testimony , and Spurck’s counsel admitted that she spoke with Serg eant Boswe ll befor e he testified. The trial court overr

uled Spu rc k’s objection and admitted Serg eant Boswe ll’s testimony for the limit ed purpose of rebutting Spurck’s asser tion that she did not know that Gar za had been previously

arr ested for injuring a child. The court noted that the Depa rtment “did not know of and would not have known of” S er gea n t Boswell’s conver sation with Spurck prior to trial, and thus “they could

13not [have provided] any prior notice.” We take the trial court’s decision to allow Serg eant Boswe ll

to testify as an implicit finding that the Depa rt m en t d emons trated g ood cause for its failure to identify Serg eant Boswe ll as a witness. See Brunelle , 198 S.W .3d at 479 (“B y overr uling appellant’ s objection and permitting [t he witness] to testify , th e t ri al co urt deter mined implicitl y either that appellee s disclosed [t he witness’s] i d en t i t y , there was g ood cause for not disclosing him, or that appellant wa s not unfairly surprised or

prejudice d.”). A party cannot rea sonably be expected to disclose the identity of a witness when the party is unawa

re of the witness’s exis tence

. Thus, when a party lear ns about the exis tence of witness during trial, the party may have g ood cause for failing to disclose the witness’s identity to opposing counsel. See Tex. R. Civ. P. 193.6(a) (1); see also Mun o z v. Mi ssouri Pac. R.R. Co. , 823 S.W .2d 766, 769 (Tex. App.—Corpus Christi 1992, no writ) (conc luding trial court did not abuse discretion in finding party demonstrated g ood cause for failing to identify witnesses whose exis tence the party did not lear

n about until trial). This is not a per se rule. I f, for example, the party offe ring a witness

wo u l d h av e l ear

ned about the witness’s exis tence ear lier if the party had conducte d a rea sonable investiga tion, the witness could be excluded based on lack of g ood cause . See Alvarado , 830 S.W .2d
at 914 (“The trial court has discretion to deter mine whether the offe ring party has met his burden of showing g ood cause to admit the testimony ” of untimely identified witness.).
I n thi s ca s e, h o weve r, the trial court implicitl y found that the Depa rtment had demonstrated good cause for f ailing to identify

Serg eant Spurc k as a w itness prior to trial. As the
court c orre ctly

noted, there is nothing in the re cord to indica te that the Depa

rtment should have or could have known about Spurck’s unre corde d conver sation with a police off icer in L ampasa s that

14occur

red more t han two y ear s prior to trial. The Department stated that i t l ea rn ed about Spurck’s previous conver sation with Serg eant Boswe ll when it rec eived a letter from a police office r who was
not involved in this case . Acc ording to the Department, t he letter explained that Boswe ll told the police office r about his previous encounte r with Spurck during a “g ener al conver sation” about work.
I f this is true, it is unlikely that t h e Depa rtment could have lear

ned of Serg eant Boswe ll’s brief interac tion with Spurck that occur red over two y ears p ri o r t o t rial, and thus the late discovery of Serg eant Boswe ll was purely happensta nce. The trial court implicitl y believed this explanation, and thus found that the Depa

rtment had shown g ood cause for its failure to identify Serg eant B oswell. See M unoz , 823 S.W .2d at 769. Fur thermore , the t rial court could have reas o n ably believed that allowing Serg eant Boswe ll to testify was in L .G.’s best interest. See In re P.M.B. , 2 S.W .3d at 624. Whether Spurck knew about Gar za’s alleg ed history of child abuse and chose to rema in with him is probative of her willingness to protec t her children. Fur thermore , if the jury believed Serg eant Boswe ll’s statement that he direc tly told Spurck that Gar za fac ed criminal char g es for injuring a child, that would indicate that Spurck lied under oath when she said she “had no knowledg e that [Garza] was g oing to court for injury to a child char g e criminally [si c].” Given that, in a termination proce eding , formal conce rns about the rules of discovery are less important than providing the jury as much rele vant information

as po s s ible, the trial court could have rea sonably conclude d that admitting Serg eant Boswe ll’s testimony was in L .G.’s best intere st. See R .H. , 2001 WL 491119, at *8. There fore , based o n the rec ord befor e us, we cannot conclude that the trial court abused its discretion in admitting Serg eant Boswe ll’s testimony

. Having alre ady conclude d that the

15trial court did not abuse its discretion in admitting Rang er Ramos’s testimony , we overr ule Spurck’s first issue on appe al.

Interve ntion of

L.G.’s foster parents I n her second issue on appea l, S p u rc k asser ts that the trial court err ed in deny ing her motion to strike L .G.’s foster pare nts’ petition in intervention. Specifica lly , Spurck arg ues that the foster pare nts lack sta nding to intervene under section 102.004(b) of the family code beca use this suit was not broug ht under sec tion 102.004(a).

We revie w a trial co u rt ’s ruling on a motion to strike for an abuse of discretion. See In re N.L.G. , 238 S.W .3d 828, 829 (Tex. App.

— Fo rt W o rt h 2007, no pet.). Howeve r, to the extent the trial court’s ruling depends on an issue of statutory interpre tation, we revie w the court’s ruling de novo. State v. Shumake , 199 S.W .3d 279, 284 (Tex. 2006)

. “I n construing a statute, our objective is to deter

mine and g ive eff

ect to the L eg islature’s intent.” See H arris Cnt y. Hosp. Dist.

v. Tomball Reg’l Hosp. , 283 S.W .3d 838, 842 (Tex. 2009) (citations and internal quotations omitted). Whil e we first l o o k t o t h e plain lang uag e of the statute, we may consider other fac tors in asce rtaining l egi s l at ive intent, including the law’s objective, its history , and the “common law

or former statutory provisi o n s ” conce rning the same or simil ar subjects. Tex. Gov’t Code Ann. § 311.023(1), ( 3)–(4) (West 2005).

Gene rally , an intervenor must ha ve standing to maintain an orig inal suit in order to intervene

. W

hi t worth v. W

hitwort h , 222 S.W .3d 616, 621 (Tex. App.—Houston [1st Dist.] 2007,

no pet.). A party ’s standing to file an orig inal suit aff ecting a pare nt-child rela tionship is g overne d

16by sections 102.003 and 102.004(a) of the family code. See Tex. Fa m. Code Ann. §§ 102.003 (West 6 Supp. 2011) (providing g ener al standing to file o ri gi n al suit), 102.004(a) (providing additional standing for g rand p arent or close rela tive to file orig inal suit for manag ing conser vatorship). Howeve r, section 102.004(b) of the family code provides a “re laxed standing rule” by which parties who would not have standing to file an orig inal suit for manag ing conser vatorship may nonetheless intervene in an ong oing suit. See W hitwort h , 222 S.W .3d at 6 2 1 (n oting that section 102.004(b) “applies to i n terve ntions seeking manag ing conser vatorships as well as those seeking possessory

conser vatorships.”). Under section 102.004(b), the trial court may , within its discretion, g rant a child’s g randpa

rent or “other person whom the trial court finds to have had substantial past contac t with the child leave to intervene in a pending suit filed by a person au t h o ri zed to do so under this subchapte r . . . .” Te x . Fa m. Code Ann. § 102.004(b). On appea l, Spurck notes that the Depa rtment initiated this suit based on its standing

un d er section 102.003(a) (6). There fore , acc ording to Spurck, section 102.004(b) does not apply beca u s e t h i s i s not a suit “filed by a person authorized to do so under this subchapter .” See id. (empha sis a dded). Spurck asse rts that “this subchapter ” re fer s only to se ction 102.004. Thus, she cl aim s, section 102.004(b) provides a rela x ed standing to intervene in suits for manag ing

conser vatorship broug ht only

under se ction 102.004(a)

.

The Depa rtment conce des that the foster pare nts lack standing under section 1 0 2

. 0 0 3 6 beca use L .G. had lived in their house for only nine months at the time of their intervention. See Tex. Fam. Code Ann. § 102.003(a) (12) (West Supp. 2012) (allowing foster parents t o fi l e orig inal suit if child lived in their home for at least twelve months). There fore , the foster pare nts have standing to intervene , if at all, under section 102.004(b)

. See id. § 102.004(b) ( West 2006).

17Un d er S purck’ s interpre tation, section 102.004(b) would g ive a g randpa rent o r person who had substantial past contac t wi th a child standing to intervene only in a suit for
manag ing conser

vatorship broug ht by the child’s blood rela tive. See id. § 102.004(a) –(b). Spurck does not cite—and we have not found—any authority to support this prop o s i t i on. Fur thermore , Spurck’s interpre tation is inconsistent with the unanimous prec edent from this Court and our sister
courts of appea ls, which have applied section 102.004(b) to suits initiated by the Depa rtment. See,
e.g. , Jasek v. Texas Dep’ t of Family & Protective Servs. , 348 S.W .3d 523, 529 (Tex. App.—Austin 2011, no pet.) (re cog nizi ng that persons with past substantial contac t could intervene under section 102.004(b) in Depa

rtment’s pending suit); In re N.L.G

. , 2 3 8 S.W .3d at 830 (conc luding foster
p a r e n ts h a d s ta

n d in g to in

te r v e n e u n d e r 1 0 2

. 0 0 4 ( b ) in s u it o r ig in a ll y f il e d b y D e p a

r tm e n t) ; I n r e A

. M

. , 60 S.W .3d 166, 169 (Tex. App.—Houston [1s t Dist.] 2001, no pet.).

Spurck’s novel interpre tation of the statute is also inconsistent with leg islative intent. By adopting section 102.004(b), the leg islature intended to allow individuals who could not file an orig inal suit aff

ecting pare ntal rig hts to be able to intervene in an ong oing suit beca use “interve ntion
may enhanc e the trial court’s a bility to adjudicate the cause in the best interest of the child.” In re N.L.G. , 238 S.W .3d at 830. I n this case , it would be inconsistent with th e l eg islature’s intent to permit parties to intervene in suits broug ht only by a child’s blood r elatives, while excluding them from intervening in suits broug ht by the Depa rtment, adoptive pare nts, or any other person who has standing to bring an orig inal suit. See id. ; see also Tex. Fam. Code Ann. § 102.003(a) (listing persons who ha

ve g ener al standing to file suit). Fur thermore , Spu

r c k ’ s in te r p r e ta ti o n is in c o nsistent with the leg islature’s intent when it r ecodif ied the fa mily code in 1995. See J

ones v. Fowler , 969 S.W .2d 429, 431–32 (Tex. 1998)

. 18As the supreme court explained, the rec odification of the family code wa s n o t i n tended to make

substantive chang es u n less the substantive chang e was specifie d in a “‘Sec tion by Section An aly sis.’” Id. (citing House Comm. on J uvenile J ustice & Family I ssues, Bill Analy sis, T ex . C.S.H.B. 433, 74th L eg ., R.S. (1995))

. I n this case , prior to rec odification, the prede cessor to section 102. 004(b) allowed parties to intervene in suits that wer e broug ht under the g ener al standing provision. See Act of May 23, 1987, 70th L eg ., R.S., ch. 744, § 1, 1987 Tex. Gen. L aws 2666

7 (ame nded 1989) (cur

rent version at Tex. Fam. Code Ann. §§ 102.003–.004). After rec odification, the g ener al standing provision and “Standing for Gr andpar ents or Other Persons” provisions wer e separ ated into subsections 102.003 and 102.004, r espec tively

. Id.

Howeve r, there is nothing in the “Section by Section Analy sis” of the rec odification which indicates that the leg islature intended this division o f a single section into two separ ate subsections to cre ate new restric tions on who could intervene in an ong oing suit. See House Comm.

on J uvenile J ustice & Fa mily I ssues, Bill Analy sis, Tex. C.S.H.B. 433, 74th L eg. , R.S. 1995. There fore , we presume that this chang e in the family code was not intended to be s u b s t an t ive, and thus section 102.004(b) still all ows intervention in suits broug ht under the g ener al standing provision codified in section 102.003. See Jones , 969 S.W .2d 431

– 3 2

. Gi ven that Spurck’s proposed interpretation of 102.004(b) is inconsistent with the l eg islature’s intent, we find that the trial court did not abuse its discretion in allowing L .G.’s foster pare nts to intervene in a suit broug ht by the Depa rtment. We overr

ule Spurck’s se cond issue on appe al.

For mer section 11.03(c) , which is now s ection 102.004(b), allowed intervention i n suits 7 broug ht under section 11.03(a) , which is now section 102.003, the g ener al standing provision. See Act of May 23, 1987, 7 0 t h L eg. , R .S., ch. 744, § 1, 1987 Tex. Gen. L aws 2666 (ame nded 1989) (cur rent ve rsion at Tex. Fam. Code Ann. §§ 102.003–.004)

. 19Jury instruction on p refer ence for fam ily pl acem ent I n her third issue on appea l, Spurck asser ts that the trial court err ed in failing to instruct the jury that should he r pare ntal rig hts be terminated, Spurck’s g randmother should be the pref err ed manag ing co n s erva tor of L .G. Specifica lly , Spurck asser ts that there is an overa

rching policy pref ere nce f or plac ing c hildren with rela tives, and thus the court should have instructed the jury that Spurck’s g randmother was a pref era ble manag ing conser

vator. A jury instruction is proper when it ( 1) assists the jury , (2) acc urate ly states the law, and (3) finds support in the pleading s and the evidenc e. See In re D.O. , 338 S.W .3d 29, 38 (Tex. App.—Eastland 2011, no pet.). We revie w

a trial court’s decision to submi t o r re fu s e t o submit a particula r jury instruction for an abuse of discretion. See I

n re V.L.K. , 24 S.W .3d 338, 341 (Tex. 2000). At trial, Spurck proposed the following jury instruction, which the trial court ref used to give :
[S purck’ s g randmother ] shall be appointed as sole or joint manag ing

conser vator in pref

ere nce to the Depa

rtment or [L .G.’s foster pare nts] unless y ou find fr o m a preponde ranc e of the evidenc e that it would not be in the best interest of the child t o appoint [S purck’ s g randmother ].

On appea l, Spurck claims that the jury instruction was war rante d beca

use there is an overa ll policy pref ere nce that children should be place d wi th family members. Spurck asser ts that this policy pref ere nce is r epeatedly expressed in the family code. See Tex. F am. Code Ann. §§ 262.114(c) (1) (noting that Depa

rtment should place chi ld with foster pare nt if place ment with rela tive not in best interest), 263.3 0 6 (a )( 6 ) (re quiring Depa rtment to identify rela tives who could provide safe

20environment at ever y perma nency h ear ing) , 263.404(a) (2) (noting court may appoint Depa rtment
manag ing conserva

tor without terminating pare nt’s rig hts if placeme nt with relative not in child’s best interest) ( West S upp. 2012).

Howeve r, the sections of the family code upon which Spurck relies are not applicable in this case . The issue of manag ing conser vatorship of L .G. arose from the termination of Spurck’s
pare ntal rig hts. By their own terms, the statutes that Spurck relies upon cre ate a statutory pref ere nce for place ment with a rela tive while a pare nt still reta ins her pare ntal rig hts. See id. §§ 262.114(c) (1), 263.306(a) (6), 263.404(a) (2); see also In re D.O. , 338 S.W .3d at 38–39 (noting that section 263.404 d o es n o t cre ate prefe renc e for g ranting manag ing conservatorship to rela tive when parenta l rig h t s have be en ter

minated). Given that the Depa

rtment soug ht to terminate Spurck’s pare ntal rig hts, appointment of a manag ing conser

vator for L .G. was g overne d by section 161.207. This section provides that if

a court ter

minates the par ent-c hild relationship of both pare nts, “the cour t sha ll a ppoint a suitable, competent adult, [t he Depa rtment], a licensed child-plac ing age n cy , or an authorized ag ency as manag ing conser

vator of the child.” See Tex. Fam. Code. Ann. § 161.207(a) (West 2008). Unlike the sections cited by Spurck, this section does indicate that a rela tive should be g iven pref ere nce as

a manag ing conser

vator once the pare nts’ rig hts have been terminated. See id. ; see also In re D.O. , 338 S.W

. 3 d at 38–39. Thus, Spurck’s proposed jury instruction misstates the law, and the trial
court did not abuse its discretion in ref using to submit it to the jury

. See V.L.K. , 24 S.W .3d at 341. We overrule Spurck’s third issue on appe al.

21Suf

fi ciency of the evidence

I n her fourth and fifth i s s u es o n appeal, Spurck claims that the evidenc e is leg ally and fac tually insufficient to sup p o rt the jury ’s finding that a statutory g round for termination exis ts and that termination is in L .G.’s best interest. To terminate the pare nt-child rela tionship, the 8 fac tfinder must find clea

r and convincing evidenc e that (1) the pare nt has eng ag ed in conduct set out
as st atutory g ro u n d s fo r termination and (2) termination is in the child’s best interest. In re C.H. , 89 S.W .3d 17, 23 (Tex. 2002). We will revie w the sufficie ncy of the evidenc e to support these two finding s separ ately

. Standard of review

“The distinction bet we en leg al and fac tual sufficie ncy when the burden of proof is clea r and convincing evidenc e may be a fine one in some case s, but there is a distinction in how the evidenc e is revie wed.” In re J.F.C. , 96 S.W .3d 256, 266 (Tex. 2002 ). I n a termination case , we revie w the leg al sufficie ncy of the evidenc e by considering all of t h e evidenc e in the light most favor able to the fac tfinder’ s deter mination and will uphold a finding if a rea sonable fac tfinder could have formed a firm conviction that its finding was true. Id. To g ive appropr iate defe renc e to the fac tfinder’ s conclusions, we must assume that the jury resolved disputed fac ts in favor of its finding if it could rea sonably do so. Id. An appellate court should disreg ard evidenc e a rea sonable fac tfinder could have disbelieved or f ound incre dible. Id.
Spurck prese rved her challeng es to the sufficie ncy of the evidenc e by timely filing a motion 8 for new trial which included a statement of points on appea l. See Act of J une 15, 2001, 77th L eg ., R.S., ch. 1090, 2001 Tex. Gen. L aws 2397 (ame nded 2011) (cur rent version at Tex. Fam. Code Ann. § 263.405(b) (West Supp. 2012)) (establishing require ments for preserv ation of issues on appea l from final order ). Subsequent to the proce eding s in this case , t h e family code was amende d to remove this procedur al re quirement. See Tex. Fam. Code Ann. § 263.405( b). 22When revie wing the fac tual sufficie ncy of the evidenc e in a pare ntal te r mi n a ti on case , we view all of t he evidence in a neutra l light and de termine whe ther a rea sonable fa ctfinder

could form a firm belief or conviction that a g iven finding was true. In re C.H. , 89 S.W .3d at 18–19. We

assume that the jury resolved disputed fac ts in favor of its finding if a rea sonable jury could do so, and we disreg ard evidenc e that a rea sonable jury could have disbelieved or found incre dible. J.F.C. , 96 S.W .3d at 266. Evidence is f actua lly insufficient only if a rea sonable fac tfinder could not ha ve resolved the disputed evidenc e in favor of its finding and if that disputed evidenc e is so signific ant that the fa ctfinder

could not rea sonably

have f ormed a firm belief

or convic tion. Id.
Statutory ground for t ermination

At trial, the jury was asked whether Spurck’s pare ntal rig hts should be terminat ed pursuant to subsections (D) and (E) of section 161.001(1) of the family code. Under subsection (D),

a jury must find by cl ea r and convincing evidenc e that Spurck “knowing ly place d or knowing ly allowed the child to rema in in conditions or surrounding s which endang er the phy sical or emotional

w e ll

- b e in g o f th e c h il d

. ” T e x. F a m. Co d e A

nn . § 1 6 1

. 0 0 1 ( 1 ) ( D )

. B y c o n tr a s t, s u b s e c ti o n ( E ) r e q

u ir e s

a jury to find by clea

r and convincing evidenc e that Spurck “eng ag ed in conduct or knowing ly place d the child with persons who eng ag ed in conduct which endang ers the phy sical or emot i o n al wellb e in g o f th e c h il d

. ” S

e e id

. § 1 6 1

. 0 0 1 ( 1 ) ( E )

. T h e ju

r y , a f te r b e in g in s tr

u c te d th a t te r mi n a ti o n r e q u ir e d clea r and convincing evidenc e of at least one of these g rounds, found that Spurck’s pare ntal rig hts should be terminated.

Only one statutory g round is nece ssary to support a judgme nt i n a p arental-rig htstermination case . See In re A.V. , 112 S.W .3d 355, 3 6 2 (T ex . 2 0 0 3 ). There fore , when multipl e
23statutory g rounds for termination are alleg ed and the trial court issues a broad- form question asking

the jury whether the parent-child rela tionship should be terminated, we must uphold the jury ’s finding if any of t he st atutory g rounds allege d supports it. In re B.K.D. , 1 3 1 S.W .3d 10, 16 (Tex. App.—For

t Worth 2003, pet denied). Both subsections (D) and (E) requi re proof of child endang erme nt, i.e., ex posing a ch i l d to loss or injury or jeopar dizi ng a child’s emotional or phy sical well-be ing. Texas De p ’t o f Human Servs. v. Boyd , 727 S.W .2d 531, 533 (Tex. 1987). Endang erme nt does n o t need to be established as an independe nt proposition, but may be inferr ed from pare ntal misconduct alone. Id. Subsection (D) require s proof that the environment in which the pare nt place d the child endang ere d the child’s phy sical or e motional well-being , while subsection (E) require s proof that the cause of the enda ng erme nt was the pa

rent’s a ctions or fa ilure to ac t. Id.
I n this case , Spurck admitted to Rang er Ramos, her counselor, and to the jury that she continued to allow her children to live with Gar za while Gar za was phy sically assaulting her. Spurck acknow ledg ed that on at least one o ccasion, Gar za assaulted her in front of L .G. Fur thermore , Spurck knew that Garza had been acc used of injury to a child in the past. I n addit i o n , S p u rck suspected that Gar za was responsible for an injury to I .G.’s head, but she d i d n o t seek emerg ency medical trea

tment for fea

r of implicating Gar za. Finally , even though Spurck denied knowing that Gar za was actua lly char g ed with injury to a child, Serg eant Boswe ll testified that he told Spurck that Gar za had been arr ested for injury to a child, and that she “nee ded to ree valuate her rela tionship with Mr. Gar za” base d on his criminal history and ar rest for injury to a child. Considering the evidenc e in the light most favor able to the jury ’s finding , we find that

a jury could rea s o n ab l y h av e formed a firm conviction that Spurck knowing ly place d L .G. in an
24environment which endang ere d his phy sical or emot i o n al well-be ing. See Tex. Fam. Code Ann.

§ 161.001(1)( D). There fore , we conclude that the evidenc e is leg ally sufficie nt to support the jury ’s finding that one of the statutory g rounds for termination exis ts. See In re A.V. , 112 S.W .3d at 362. Simi larly , considering the evidenc e in a neutra l light, we deter mine that a jur y co uld rea sonably have formed a firm belief or conviction that Spurck knowi ng ly place d L .G. in conditions that endang ere d his phy sical or emotional well-be ing. There fore , we conclude that the ev i d ence is fac tually sufficie nt t o s u p p o rt the jury ’s finding that one of the statutory g rounds for termination exis ts. See J.F.C. , 96 S.W .3d at 266. Having deter mined that the evidenc e is sufficie nt to support the jury ’s finding on one of the statutory g rounds, we need not consider whether the evidenc e would support other g rounds for termination. See In re B.K.D. , 131 S.W .3d at 16. We overr ule Spurck’s fourth issue on appe al.

Child’s best interest

I n a par ental-r ights-te rmination case , the best intere st of the child is assessed using

a n o n-exhaustive list of factors. See In re R.R. , 209 S.W .3d 112, 116 (Tex. 2006). T h es e fa ct o rs include (1) t h e ch i l d ’s wishes, (2) his emotional and phy sical needs now and in the future, (3) emotional or phy sical dang er to the children now and in the future, (4) the pare nting abilities of the par ties seeking custody , (5) pr og rams ava ilable t o help t hose parties, (6) plans for the child by the parties seeking custody , (7) the stability of the proposed place ment, (8) the acts or omissions of the pare nt which indicate that the exis ting pare nt-child rela tionship is not proper , and (9) any excuses for the acts or omissions of the pare nt. See Holley v. Adams , 544 S.W .2d 367, 371–72 (Tex. 1976).

25The De p ar t ment need not prove all nine Holley fac tors as a “condition prec edent”

to termi n at i o n , and the absenc e of some fac tors does not bar the fac tfinder from finding that termination is in the child’s best interest. In re C.H

. , 8 9 S

. W

. 3 d at 27. Whil e no one fac tor is controlling , the analy sis of a single fac tor may be adequate in a particula r s i t u at i o n t o support a finding that termination is in the child’s best interest. In r e J. O. C

. , 4 7 S.W .3d 108, 115 (Tex. App.—Waco 2001, no pet.)

.

I n this case , we rec og nize that the hardships in Spurck’s life are not wholly of her own making

. There was evidence that she was abused as a child. Fur thermore , we c annot ig nore
t he fac t that Spurck beg an dating Gar za when she was only six teen y ear s old, an d t h at s h e d i d
not have l o n g-t er m plans to rema in with him prior to becoming preg nant with L .G. We also acknow ledg e that Spurck expressed a desire to t urn her life around, and that she substantially completed al l o f t h e require ments of her family service plan. We do not doubt that Spurck loves
L .G. Howeve r, in considering the best interests of t h e ch ild, “evide nce of a rec ent turn-ar ound in beh avior by the pare nt does not totally offse t evidenc e of a pattern of instabilit y and harmful behavior in the past.” See Smith v. Texas Dep’ t of Protective & Regulatory Servs. , 160 S.W .3d 673, 681 (Tex. App.—Austin 2005, no pet.).

Many witnesses testified on behalf of the various parties about who was best suited
to assume custody of L .G. Whil e we do not rec ite all of t he testi m o n y h er e, we n ote t hat t he jury hear d evidenc e that (1) Spurck allowed her children to live with Gar za even though Gar za repe atedly phy sically abused he r, (2) Spurck had rea son to suspect that Gar za had previously injured a child, (3) when Spurck rea liz ed that I .G. was injured, she delay ed seeking medical trea tment for fea r that

26Gar za might g et in trouble, and (4) s h e i n i tially ref used to cooper ate with law enfor ceme nt in the investiga

tion of I .G.’s death. The jury could rea sonably have found that these past acts and omissions wer e in ex cu s ab l e and indicated that Spurck’s rela tionship with L .G. was not stable or safe

. See Holley , 544 S.W .2d at 372; S mi t h , 1 6 0 S .W.3d at 681. Fur thermore , the jury could

rea sonably

have inf err ed that Spurck’ s failure to protect L .G. from emotional and phy sical dange r in the past may indicate that she would fail to do so in the f uture. See I

n re C.H. , 89 S.W .3d at 28 (noting that past endang erme nt may be probative of child’s best interest s n o w and in future) ; Holley , 544 S.W .2d at 371–72 (noting that courts may consider evidenc e rela ting to curr ent and future e motional and phy sical nee ds of child).

I n addition, the Depa

rtment introduced eviden ce that Spurck continued to be d e f ic ie n t in h e r p a r e n ti n g a b il it ie s . A lt

h o u g h Sp u

r c k p a r ti c ip a te d in a ll o f th e r e c o mm e n d e d p a r e n ti n g prog rams, testimony indicated that she failed to apply the lessons from her pare nting classes during her supervised visitations with L .G. I n addition, Spurck’s counselor testified that she was conce rned
t h at Spurck was being disinge nuous during their sessions, indicating that she did not fully take advanta g e of the prog rams the Depa rtment offe red to help her become a better pare nt. Ba sed on this evid en ce , the jury could rea sonably have inferr ed that Spurck had rela tively limit ed pare nting skills and would not fully participa te in prog rams desig ned to improve her abilities in the future. See In re K.B. , No. 03-09-00366-C V, 2010 WL 5019368, at *8 (Tex. App.—Austin Dec

. 9, 2010, no pet.) (mem. op.) (noting that pare nt’s participa tion in pare nting prog rams may be discounted if has
not resulted in lasting improvements in pare nting skills). By contra st, the jury hear d testimony that
L .G.’s foster pare nts wer e ex cellent pare nts who provided a safe and stable home for L .G.

27There fore , the jury could have rea sonably found that the rela tive pare nting abilities o f the parties seeking custody indicated that terminating Spurck’s pare ntal rig hts was in L .G.’s best i n t er es t

. Ho l l ey , 544 S.W .2d 371–72. Simi larly , the jury could have rea sonably found that Spurck wou l d not avail her self of pr og rams desig ned to help her provide a better e nvironment for L .G. Id. Finally , the jury hear d evidenc e that Spurck could not provide a home for herse lf and
L .G. on her own. At the t ime of t rial, S purck was l iving with her mother, and her job did not pay enoug h for her to be self-suf ficient. Spurck stated that if she was awa rded custody o f L .G., she would try to move in with either her g randmother or the Medina Home—a “home wher e victims of domestic v i o l en ce go with their children.” Howeve r, t here was no testimony that either Spurck’s
g randmother or Medina Home had ag ree d to support Spurck, and thus the jury could have rea sonably i n fe rr ed that Spurck could not provide a stable home. I n addition, the jury hear d some evidenc e that L .G. had bonded to his foster pare nts, that he ref err ed to them as mom and dad, and that he considere d their home to be his home. See In re J.L.C. , 194 S.W .3d 667, 675 (T ex . Ap p .—For t Worth 2006, no pet.) (noting that toddler’s aff ection and attachme nt to foster pare n t s ca n b e evidenc e of c hild’s desire to re main with foster fa mily ). Considering this evidenc e in the l ight most favor able to the j ury ’s findi ng , we find that a jury could reasonably have formed a firm belief

that termination of Spurck’ s pare ntal rig hts

was in L .G.’s best interest. There fore , we conclude that the evidenc e is leg ally sufficie nt to terminate
L .G.’s parental rights. Simi larly , in considering the evidence in a neutral light, we deter mine that

a jury could rea sonably have formed a firm belief or conviction that termination of Spurck’s
pare ntal rig hts was in L .G.’s best interest. There fore , we conclude that the evidenc e is also fac tually sufficie nt to support the jury ’s finding . We overrule Spurck’s fif th and final issue on a

ppeal.

28CONCLUSION Having overr

uled Spurck’s five issues on appea l, we aff irm the judgme nt of the trial
court.

__________________________________________ Scott K. Field, Just ice Be fore J ustices Pury ear , Goodwin, and F ield Affir med Filed: F ebrua

ry 8, 2013

29