Opinion filed May 13, 2010

In The

Eleventh Court of Appeals 

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No. 11-08-00276-CV

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IN THE INTEREST OF M.F., C.B.F., & E.F., CHILDREN

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause No. CV 05-09-419

M E M O R A N D U M O P I N I O N

James Earl Foster and Shonda Lean Foster1appeal from the trial court’s order 

terminating their parental rights to their three children M.F., C.B.F., and E.F. We affirm.

On September 16, 2005, the Texas Department of Family and Protective Services filed its 

original petition for protection of a child. The trial court entered an order naming the 

Department as sole managing conservator of the children. The children were placed with their 

paternal great aunt and uncle, David and Barbara Wiedebusch. After a mediated settlement, the 

trial court entered an agreed final order on October 30, 2006, in which it named the 

Wiedebusches as the permanent managing conservators of the three children. The agreed order 

named James Foster and Shonda Foster as possessory conservators of the children and 

established a detailed visitation schedule. On October 2, 2007, the Wiedebusches relinquished 

 

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Shonda Foster is also referred to as Shanda Foster in the record.
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custody of the children to the Department after conflicts arose between the Wiedebusches and 

James and Shonda Foster. The Department was again named managing conservators of the 

children. The Department filed a petition to terminate the parental rights of James and Shonda 

Foster. After a jury trial, the trial court entered an order terminating the parental rights of James 

and Shonda Foster to M.F., C.B.F., and E.F. It is from this order that the parties appeal. 

James brings three issues on appeal, and Shonda brings four issues on appeal. Both 

James and Shonda argue that the trial court erred in ruling that the Department had standing to 

proceed after the mediated settlement agreement. TEX. FAM. CODE ANN. § 102.003(a)(5) 

(Vernon Supp. 2009) states that a governmental agency has standing to file an original suit 

affecting the parent-child relationship at any time. Further, TEX. FAM. CODE ANN. § 262.001(a) 

(Vernon 2008) states that a governmental entity “may file a suit affecting the parent-child 

relationship requesting an order or take possession of a child without a court order as provided 

by this chapter.” The mediated settlement agreement did not deny the Department standing, and 

the trial court did not err when it found that the Department had standing to file suit. We 

overrule both James’s and Shonda’s third issues on appeal.

James and Shonda both argue that the trial court erred in allowing testimony concerning

conduct that occurred prior to the mediated settlement agreement. James and Shonda contend 

that, after the mediated settlement and agreed final order, the Department was no longer a party 

to the action. James and Shonda further argue that res judicata prevents the Department from 

offering evidence of misconduct that occurred prior to the agreed final order. TEX. FAM. CODE 

ANN. § 161.004 (Vernon 2008) is instructive:

(a) The court may terminate the parent-child relationship after rendition of 

an order that previously denied termination of the parent-child relationship if:

(1) the petition under this section is filed after the date the 

order denying termination was rendered;

(2) the circumstances of the child, parent, sole managing 

conservator, possessory conservator, or other party affected by the 

order denying termination have materially and substantially 

changed since the date that the order was rendered;

(3) the parent committed an act listed under Section

161.001 before the date the order denying termination was 

rendered; and

(4) termination is in the best interest of the child.
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(b) At a hearing under this section, the court may consider evidence 

presented at a previous hearing in a suit for termination of the parent-child 

relationship of the parent with respect to the same child.

Although there was not a previous order denying termination of James’s and Shonda’s 

parental rights, there was an agreed final order in response to a petition to terminate their 

parental rights. The Department filed a subsequent petition to terminate James’s and Shonda’s 

parental rights after the agreed final order. The circumstances of the children had materially 

changed as the managing conservators of the children, the Wiedebusches, had relinquished 

custody of the children based upon conflicts with James and Shonda. Section 161.004 allows the 

trial court to consider evidence presented in a previous hearing in a suit for termination, and we 

follow that reasoning and find that the trial court could consider evidence of conduct prior to the 

agreed final order. We overrule both James’s and Shonda’s second issues on appeal. 

In his first issue on appeal, James argues that the evidence is factually insufficient to 

support the jury’s finding of termination. In her first issue on appeal, Shonda argues that the 

evidence is legally insufficient to support the jury’s finding of termination. 

Due process requires that the grounds for termination be established by clear and 

convincing evidence. This requires that measure or degree of proof that will produce in the 

mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be 

established. TEX. FAM. CODE ANN. § 101.007 (Vernon 2008); Transp. Ins. Co. v. Moriel, 879 

S.W.2d 10, 31 (Tex. 1994). When conducting a legal sufficiency review, we review the entire 

record in the light most favorable to the finding and determine whether a reasonable trier of fact 

could have formed a firm belief or conviction that its finding was true. City of Keller v. Wilson, 

168 S.W.3d 802, 817 (Tex. 2005); In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); In re J.P.H., 

196 S.W.3d 289, 292 (Tex. App.—Eastland 2006, no pet.). We must assume that the factfinder 

resolved disputed facts in favor of its finding. Phillips v. Tex. Dep’t of Protective & Regulatory 

Servs., 149 S.W.3d 814, 817 (Tex. App.—Eastland 2004, no pet.). We must also disregard all 

evidence that a reasonable factfinder could have disbelieved or found incredible, but we cannot 

disregard undisputed facts. In re J.F.C., 96 S.W.3d at 266.

When conducting a factual sufficiency review, we review the entire record, including 

evidence in support of and contrary to the judgment, and give due consideration to evidence the 

trial court could have found to be clear and convincing. In re C.H., 89 S.W.3d 17, 25 (Tex.
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2002); In re J.P.H., 196 S.W.3d at 292-93. We then determine whether the evidence is such that 

a factfinder could reasonably form a firm belief or conviction about the truth of the State’s 

allegations. In re C.H., 89 S.W.3d at 25; In re J.P.H., 196 S.W.3d at 292. We also consider 

whether any disputed evidence is such that a reasonable factfinder could not have resolved that 

evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266.

The Department sought termination under provisions set out in TEX. FAM. CODE ANN.

§ 161.001(1) (Vernon Supp. 2009) including:

(D) knowingly placed or knowingly allowed the child to remain in 

conditions or surroundings which endanger the physical or emotional well-being 

of the child;

(E) engaged in conduct or knowingly placed the child with persons who 

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

child; 

(F) failed to support the child in accordance with the parent’s ability 

during a period of one year ending within six months of the date of the filing of 

the petition; [or]

(O) failed to comply with the provisions of a court order that specifically 

established the actions necessary for the parent to obtain the return of the child 

who has been in the permanent or temporary managing conservatorship of the 

Department of Family and Protective Services for not less than nine months as a 

result of the child’s removal from the parent under Chapter 262 for the abuse or 

neglect of the child.

There must also be a finding that termination is in the best interest of the child. TEX. FAM. CODE

ANN. § 161.001(2) (Vernon Supp. 2009).

“Endanger” means more than a threat of metaphysical injury or a less than ideal 

environment, but the conduct need not actually injure the child, nor is it necessary that the 

conduct be directed at the child. “Endanger” “means to expose to loss or injury; to jeopardize.”

Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); Phillips, 149 S.W.3d at

817. The Department need not establish the specific danger to the child’s well-being as an 

independent proposition; the danger may be inferred from parental misconduct. Phillips, 149 

S.W.3d at 817; In re J.J. & K.J., 911 S.W.2d 437, 440 (Tex. App.—Texarkana 1995, writ den’d).

The Department received numerous reports of abuse and neglect in the home of James 

and Shonda beginning in 1997. In 2004, the trial court issued a protective order in which it 

ordered that James not commit domestic violence against Shonda and that James not have 
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contact with Shonda. Shonda had previously filed an application for a protective order in 2002. 

James testified at the termination hearing that he and Shonda had physical altercations in front of 

the children. The police were called to the home numerous times as a result of domestic 

violence. M.F. called the police to come to the house on one occasion. James testified that he 

and Shonda engaged in conduct that endangered the well-being of the children. 

A Department investigation in 2005 revealed serious ongoing domestic violence in the 

home. The Department received a priority referral for M.F., C.B.F., and E.F. on September 2, 

2005, for the alleged physical abuse of C.B.F. by James and Shonda. C.B.F. had a bruise and 

knot on the middle of her forehead, and she said James caused the injury. C.B.F. later said she 

did not know how she got the knot and bruise. M.F. and C.B.F. told school officials about

numerous incidents of domestic violence.

After their removal from James and Shonda, M.F. and C.B.F. received counseling 

services from Lynn Sharpin. Sharpin testified that M.F. and C.B.F. were initially hostile and 

physically aggressive. M.F. and C.B.F. were “calming down” and “stabilizing in their 

adjustment” after six months in the Wiedebusches’ home, but when visitation started with James 

and Shonda, they regressed. M.F. and C.B.F. told Sharpin that James and Shonda fought a lot 

and that Shonda took drugs. M.F. and C.B.F. drew pictures that showed James throwing Shonda 

to the floor, James choking Shonda, and James bending Shonda’s hand backwards. M.F. and 

C.B.F. told Sharpin that they did not feel safe returning to James and Shonda.

Shonda testified at the termination hearing that she was arrested after an altercation in the 

home in which she became angry and threw a knife. Shonda was also arrested as a result of a 

confrontation during an exchange of the children with the Wiedebusches. Shonda stated that she 

developed a problem with painkillers in 1999 and started using methamphetamine in 2005. 

Shonda testified that she was arrested on June 14, 2008, and again on July 5, 2008, for 

possession of a controlled substance. Shonda submitted to a hair follicle drug test on March 30, 

2007, that was positive for a controlled substance, but a test on April 24, 2007, was negative. 

Shonda was indicted in 2008 for stealing lottery tickets from her employer. Shonda was also 

indicted in 2008 for engaging in organized criminal activity involving the purchase of substances 

to manufacture methamphetamine.

We find that the evidence is legally and factually sufficient to support the jury’s findings 

on termination. James and Shonda both have an extensive history with the Department. The 

record shows that James and Shonda both have engaged in domestic violence that has 
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endangered the physical or emotional well-being of the children. Evidence that a parent has 

engaged in abusive or neglectful conduct in the past permits an inference that the parent will 

continue this behavior in the future. In re D.L.N., 958 S.W.2d 934, 941 (Tex. App.—Waco 

1997, pet. denied). Shonda continues to struggle with substance abuse and has been arrested for 

drug-related offenses. We overrule James’s and Shonda’s first issues on appeal.

In her fourth issue on appeal, Shonda argues that the trial court abused its discretion in 

allowing drug test results into evidence. We review a trial court’s decision to admit or exclude 

evidence for an abuse of discretion. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 

549, 558 (Tex. 1995); Allen v. Mancini, 170 S.W.3d 167, 172 (Tex. App.—Eastland 2005, pet.

den’d). We will reverse the decision of the trial court only if it acted arbitrarily, unreasonably, or 

without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 

701 S.W.2d 238, 241-42 (Tex. 1985); Allen, 170 S.W.3d at 172. 

On direct examination, Shonda testified that she had been “clean” since April 1, 2006. 

The State asked Shonda, “Since September of 2005 to the present, how many times have you 

taken and failed a drug test in which you tested positive for methamphetamine?” Shonda 

responded without objection, “Once. I then turned around with my own money --.” The State 

then asked, “How many times have you taken a test and the test showed positive?” Shonda 

responded again without objection, “Once.” The State asked, “I know you say you didn’t take 

it --.” Shonda’s attorney then objected as to hearsay, and the trial court instructed the State to 

rephrase the question. The State asked Shonda, “[H]ow many times have you actually taken a 

drug test and it showed positive for methamphetamine?” Shonda’s attorney objected that no 

predicate had been laid, and the trial court sustained the objection. After further exchange, 

Shonda again testified without objection that she had not passed all of the drug tests she had 

taken. When asked specifically how many drug tests Shonda had “failed,” the trial court 

sustained her attorney’s objection and allowed the State to rephrase. The State asked, “Out of all

of the drug tests that you have taken, how many times have you received a written piece of paper 

saying that you failed?” The trial court overruled the objection, and Shonda stated that she was 

“not sure.” Upon further questioning by the State without objection, Shonda stated that she had 

failed more than two drug tests and possibly more than four.

Shonda initially testified without objection that she had tested positive for 

methamphetamine. Therefore, Shonda failed to timely object to the admission of the drug test 

results. TEX. R. APP. P. 33.1(a). A party must continue to object each time inadmissible 
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evidence is offered. TEX. R. EVID. 103(a)(1). After stating her objections to the evidence, 

Shonda later testified without objection that she had failed at least two drug tests. Moreover, 

Dr. Bill Gustavus testified at the termination hearing without objection that Shonda tested 

positive for methamphetamines four or five times. The general rule is that error in the admission 

of evidence is deemed harmless and is waived if the objecting party subsequently permits the 

same or similar evidence to be introduced without objection. Volkswagen of Am., Inc. v. Ramirez, 

159 S.W.3d 897, 907 (Tex. 2004); Clayton v. Wisener, 190 S.W.3d 685, 699 (Tex. App.—Tyler 

2005, no pet.).

Amanda Snow, supervisor at One Source Health Center and custodian of records, 

testified that she performs and oversees drug screens. One Source collects the specimen, but 

does not perform the test analysis. One Source receives a report from the lab with the analysis of

the drug test. The report from Shonda’s drug test was admitted over objection.

To be entitled to reversal due to the erroneous admission of evidence, an appellant must 

not only show that the trial court erred in admitting the evidence but that the error was 

reasonably calculated to cause and probably did cause the rendition of an improper verdict. 

TEX. R. APP. P. 44.1; In re C.R., 263 S.W.3d 368, 370 (Tex. App.—Dallas 2008, no pet.). We 

review the entire record and require the complaining party to demonstrate that the judgment turns 

on the particular evidence admitted. In re C.R., 263 S.W.3d at 370. The jury heard considerable 

evidence of Shonda’s drug use and her arrests for drug use. Any error in admitting the drug test 

reports was harmless. Rule 44.1; In re C.R., 263 S.W.3d at 370. We overrule Shonda’s fourth 

issue on appeal.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

May 13, 2010

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.