### 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. 03-14-00793- CV

L. C., 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 LEE CO UNTY, 21ST JUDICI AL DISTRICT NO. 15,2 54, H ONO RAB LE CARSON TALMADGE CAMP B ELL, JUDGE P RESIDING

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

This is an appea l from a final decr ee, based on jury finding s, terminating the pare ntal rig hts of L .C. to her four- y ear -old son, S.C. I n s i x i s s u es o n appea l, L .C. asser ts that: (1) the evidenc e is insufficient to support a finding that termi n at i o n wa s in the best interest of the child; (2) the evidenc e is insufficient to support a finding that L .C. committed three of the alleg ed statutory
g rounds for termination; (3) one of the alleg ed statutory g rounds for termination, althoug h supported by sufficie nt evidenc e, was based on a prior termination decr ee that, L .C. cla i ms, violated her constitutional rights and thus should not have be en submitted to the jury ; and (4) the district court abused its discre tion when it included in the jury char g e an instruc tion that the jurors did not have
to unanimously ag ree on the statutory g round for termination. We will aff irm the termination decr ee.BACK GR OUND
At the termination hear ing, the jury hear d evidenc e tending to show that L .C. had an extensive criminal history , including multipl e assaults and drug offe nses. Fur ther evidenc e tended to show that L .C. had, on prior oc casions, plac ed S.C. in the car e of other individuals with similar criminal histories. Also, the jury hear d evidenc e that L .C.’s pare ntal rig hts to another child had been terminated in 2007. Ba sed on this and other evidenc e, which we discuss in more detail below, the district court submitt ed to the jury , as alterna ti v e s ta tu to r y g r o u n d s w ithin broad- form termination iss u es , whether L .C. had: (1) knowing ly place d or knowing ly allowed the child to rema in in conditions or surrounding s which endang er ed t he child’s phy sical or emotional well-be ing; (2) eng ag ed in conduct or knowing ly place d the child with persons who eng ag ed in conduct which endang ere d the child’s phy sical or emotional well-be ing; (3) had her pare nt-child rela tionship terminated with respe ct to another child based on a finding of endang erme nt; or (4) failed to comply with the provisions of a court order that specific all y es t ab l i s h ed the actions nece ssary for her
to obtain the return of the child. I n addition to these alterna tive statutory termination g rounds, the 1

ter m i nation issue also submitt ed whether termination of L .C.’s rig hts was in S.C.’s best interest. 2
The jury found that L .C.’s pare ntal rig hts to S

. C

. s h o uld be terminated, and the district court rende red judg ment acc ording ly . This appea l followed.

See Tex. Fam. Code § 161.001(1) (D), ( E), (M) , (O). 1 See id . § 161.001(2). 2 2ANALYSIS

Evid entiary suff

iciency
I n h er fi rs t , second, and fourth issues, L .C. asser ts that the evidenc e is insufficient
to support the j ury ’s findi ng s on t er m i nation. Specifica lly , in her first issue, L .C. asser ts that the 3
evidenc e is insufficient to support a finding that termination was i n t h e b es t interest of the child; i n h er second issue, L .C. asser ts that the evidence is insufficient to support finding s reg arding th e
two statutory termination g rounds rela ted to endang erme nt; and, in her fourth issue, L .C. asser ts that
t he evidenc e is insufficient to support a finding that she failed to comply with the provisions o f a
court order that specific ally established the actions nece ssary for her to obtain the return of the child.

Stan dard of rev iew
I n a termination case , we ask whether the Depa rtment pr o v e d , b y c le a

r a n d c o n vincing evidenc e, that the p ar en t engag ed in conduct that amounts to statutory g rounds for termination and that ter

mination is i n the child’s best interest. Clear and convincing evidenc e is a heig htened 4
standard of proof that require s “the measure or deg ree of proof that will produce in the mind of the

On appea l, L .C. challeng es both the leg al and fac tual sufficie n cy of the evidenc e. 3 Howeve r, L .C. did not file a motion for new trial in the court below, which is a prer equisite for challeng ing the fac t u al sufficie ncy of the evidenc e. See Tex. R. Civ. P. 324(b)( 2); In re R.D. , 304 S.W .3d 368, 370 (Tex. 2010); In r e M. S

. , 115 S.W .3d 534, 547 (Tex. 2003); In re A.C. , 394 S.W .3d 633, 639 (Tex. App.

— Ho u ston [1st Dist.] 2012, no pet.); In re A.J.L. , 136 S.W .3d 293, 301-0 2 (Tex. App.—For t Worth 2004, no pet.). Moreove r, L .C. does not claim that trial counsel was ineffe ctive for failing to prese rve her fac tual-s u ff i ci en cy challeng e. See M.S. , 115 S.W .3d at 549-50. Acc ording ly , we will consider only the leg al sufficie ncy of the evidenc e. See Tex. R. App. P . 33.1(a)

. See Tex. Fa

m. Code § 161.001(1), (2); In re E.N.C. , 384 S.W .3d 796, 802-03 (Tex. 2012); 4 In re C.H. , 89 S.W .3d 17, 23 (Tex. 2002). 3trier of

fac t a firm belief or conviction as t o the t ruth of t he allegations soug ht to be established.” 5 On appe al, we a

pply a standa rd of r eview tha t refle cts this burden of pr oof. 6
“I n a leg al sufficie ncy revie w, a court should look at all the evidenc e in the light most favor able to the fi n d i n g t o deter mine whether a rea sonable trier of fac t could have formed a firm belief or conviction t h at i t s finding was true.” “To give appropria te defere nce to the factfinder ’s 7
conclusions and the role of a court conducting a leg al sufficie ncy revie w, lo oking at the evidenc e in the light most favor able to the judgme nt means that a revie wing court m u s t as s u me that the fac tfinder resolved disputed fac ts in favor of its finding if a rea sonable fac tfinder could do so.” “A 8
corollar y to this require ment is that a court should disreg ard all evidenc e that a rea sonable fac tfinder could have disbe lieved or f ound to have be en incr edible.” Howeve r, “[t] his does not mean that a 9

court must disreg ard all evidenc e that does n ot support the finding .” The revie wing court must 1 0
consider “undisputed fac ts that do not support the finding .” “If, af t er conducting its leg al 1 1
sufficie n cy revie w of the rec ord evidenc e, a court deter mines that no rea sonable fac tfinder could

Tex. Fam. Code § 101.007; see C.H. , 89 S.W .3d at 25. 5 See I n re J.F.C. , 96 S.W .3d 256, 264-66 (Te x . 2002). 6 Id

. 7 Id

. 8 Id

. 9 See id

. 1 0 Id

. 1 1 4form a firm belief or conviction that the matter that must be proven is t ru e, then that court must

conclude that the evidenc e is leg ally insufficient.” 1 2

Statu tory term inati on grou nds Although multipl e g rounds wer e s ubmitted to the jury in a standard broad- form question, the jury is require d to find only one statutory g round in order to terminate pare ntal rig hts. 1 3
There fore , so long as there is suf ficient evidenc e to suppor t at least one of

these g rounds, we must uphold the jury ’s verdic t. We will focus our analy sis on the g round stated in section 161.001(1)( E), 1 4
which provides that pare ntal rig hts may be terminated if th e p ar en t “enga g ed in conduct or knowing ly place d the child with pe rsons who eng ag ed in c onduct which endang ers the phy sical or emotional well-be ing of

the child.” 1 5
“Unde r section 161.001(1)( E), the rele vant inqui r y is whether evidenc e exis ts that the endang erme nt of the child’s phy sical well-be ing was the direct re s u lt of Appellant’s conduct, including acts, omissions , or failure s to act.” “Te rmination under subsection 161.001(1)( E) must 1 6
be based on more than a single act or omission; a voluntary , delibera t e, an d conscious course

Id

. 1 2 See In re A.V. , 113 S.W .3d 355, 362 (Tex. 2003); Spurck v. Texas Dep’t o f F amily & 1 3 Protective Servs. , 396 S.W .3d 205, 221 (Tex. App.—Austin 2013, no pet.).

See A .V. , 113 S.W .3d at 362. 1 4 See Tex. Fam. Code § 161.001(1) (E). 1 5
In re M

.E.-M.N. , 342 S.W .3d 254, 262 (Tex. App.—For t Worth 2011, pet. denied). 1 6
5of [endang ering ] conduct by the pare nt is require d.” “The requisite enda ng erme nt may

be found 1 7
if the evidenc e shows a pare nt’s co u rs e o f conduct that has the eff ect of endang ering the child’s phy sical or emoti o n al we ll-being .” I n this context, “enda ng er” has been broadly define d by 1 8
Texas courts. Although “‘e ndang er’ means more than a threa t of metaphy sical injury or the possible ill eff ects of a less-than-ide al family environment, it is not nece ssary that the conduct be direc ted at the child or that the child actua lly suffe rs injury .” “Rather , ‘enda ng er’ means to expose to loss 1 9
or i njury ; to jeopardize.” “Enda ng erme nt can occur throug h both acts and omissions .” “[T] he 2 0 2 1
conduct does not have to caus e a co n cr et e threa t of injury to the child.” Nor does the conduct 2 2
“have to occur in the prese nce of the child.” “And the conduct m ay o cc u r . . . both befor e and 2 3

In re C.A.B. , 289 S.W .3d 874, 883 (Tex. App.—Houston [14t h Dist.] 2009, no pet.) (citing 1 7 In re J .W

. , 152 S.W .3d 200, 205 (Tex. App.—Dallas 2004, pe t. denied))

. Id

. 1 8
T exas Dep’ t of Human Servs. v. Boyd , 727 S.W .2d 531, 533 (Tex. 1987) (citing Allred 1 9 v. Harris Cnty. Child W

elf are Unit , 615 S.W .2d 803, 806 (Tex. Civ. App.—Houston [1st Dist.] 1980, writ ref

’d n.r.e .)). Id

. (citing Webster’s New Twentieth Century Dictionary of the Engl i s h L anguag e 599 2 0 (1976))

. In re W

.J.H. , 111 S.W .3d 707, 715 (Tex. App.—For t Worth 2003, pet. denied) (citing 2 1 Phillips v. Texas Dep’ t of Protective & Regulatory Servs. , 25 S.W .3d 348, 354 (Tex. App.—Austin 2000, no pet.)) Id

. at 716 (citing In re D.M. , 58 S.W .3d 801, 811 (Tex. App.—For t Worth 2001, no pet.); 2 2 Director of Dallas Cnty. Child Protective Servs. Unit v. Bowling , 833 S.W .2d 730, 733 (Tex. App.—Dallas 1992, no wr it)).

W a l ke r v. Texas Dep’ t of Family & Protective Servs. , 312 S.W .3d 608, 617 2 3 (Tex. App.—Houston [1s t Dist.] 2009, pet. denied) (citing Bowling , 833 S.W .2d at 733).

6afte r the child has been remove d by the Depa rtment.” “I f the e vidence shows that the par ent has

2 4
eng ag ed in a course of conduct which has the eff ect of endang ering the child, then the finding under subsection E may be upheld.” “I ntentional criminal activity that exposes a pare nt to incar cer ation 2 5
is conduct that endang ers the phy sical and emotional well-be ing of a child.” This is true even when 2 6
the criminal activity does not result in a final conviction. “As a g ener al rule, conduct that subjects 2 7

a child to a life of uncer

tainty and instabilit y end ang ers the phy sical and emotional well-be ing of

a child.” There fore , “a paren t ’s use of narc otics and its eff ect on his or her ability to pare nt 2 8
may qualify as an endang ering course of conduct.” Addi t i onally , “[d] omestic violence, want of 2 9

s el f control, and propensity for violence may be considered as evidenc e of endang erme nt.” The 3 0

Id

. (citing In re S.M.L.D. , 150 S.W .3d 754, 757-58 (Tex. App.—Amar illo 2004, no pet.); 2 4 Ave ry v. State , 963 S.W .2d 550, 553 (Tex. App.—Houston [1s t Dist.] 1997, no writ)).

W .J.H. , 111 S.W .3d at 716 (c iting D.M. , 58 S.W .3d at 811). 2 5 In re V.V. , 349 S.W .3d 548, 554 (Tex. App.—Houston [1st Dist.] 2010, pet

. d en i ed) 2 6 (citing Boyd , 727 S.W .2d at 533; Allred , 615 S.W .2d at 806; Ave ry , 963 S.W .2d at 553). See In re T.G.R.-M. , 404 S.W .3d 7 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (citing 2 7 In re S.M .L ., 171 S.W .3d 472, 479 (Tex. App.—Houston [14t h Dist.] 2005, no pet.)). In re R.W

. , 129 S.W

. 3 d 7 3 2, 739 (Tex. App.—For t Worth 2004, pet. denied) (citing 2 8 In re S.D. , 980 S.W .2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied) ).

In re J.O.A. , 283 S.W .3d 336, 345 (Tex. 2009) (citing In re S.N. , 272 S.W .3d 45, 52 2 9 (Tex. App.—Waco 2008, no pet.); Toliver v. Texas Dep’ t of Family & Protective Servs. , 217 S.W .3d 85, 98 (Tex. App.—Houston [1st Dist.] 2006, no pet.); R.W

. , 129 S.W .3d at 739); see also W alker , 312 S.W .3d at 618 (“B eca use it exposes the child to the possibili ty that the pare nt may be impaired or imprisoned, illeg al drug use may support termination under se ction 161.001(1)( E).”)

. In re J.I.T.P. , 99 S.W .3d 841, 845 (Tex. A pp.—Houston [14t h Dist.] 2003, no pet.); see 3 0 also In re C.J.O. , 325 S.W .3d 261, 265 (Tex. App.—Eastland 2010, pet. denied) (“I f a pare nt abuses or neg lects the other pare n t o r other children, that conduct can be used to support a finding of endang erme nt even a g ainst a child who wa s not y et born a t the time of the conduc t.”). 7violence does not have to be direc ted toward the child or result in a final conviction—“Te x as courts

routinely consider evidenc e of pare nt-on-parent phy sical abuse in termination case s without specific ally requi ri n g ev i d ence that the conduct resulted in a criminal conviction.” Simi larly , 3 1 exposi ng one’s child to the risk of domestic violence from other s may also constitute endang ering conduct. 3 2
I n this case , the Depa rtment prese nted evidenc e tending to show that L .C. had a welldocumented history of eng ag ing in criminal behavior , both befor e and afte r S.C.’s birth. I n fac t, L .C. testified that she was curr ently incar cer ated. Multipl e criminal judgme nts and order s that had been 3 3

enter ed ag ainst L .C. wer e admitted into evidenc e, including: a 2001 order of defe rre d adjudication fo r t h e offe nse of assault on a public serva nt; a 2005 judgme nt revoking community supervisi o n for the assault offe nse; a 2003 judgme nt of conviction for the offe nse of d eb i t -c ar d abuse;

a 2007 judgme nt of conviction for the offe nse of assault, commit t ed aga i n st her then-husband; 3 4

a 2011 judgme nt of conviction for the offe nse of failure to provide identification; a 2011 judgme nt of conviction for the offe nse of possession of m arihua na; a 2011 judgme nt of conviction for the 3 5

V.V. , 349 S.W .3d at 556 (citing In re K.L.R. , 162 S.W

. 3 d 2 9 1 , 3 0 5 (Tex. App.—Ty ler 3 1 2005, no pet.); In re W .S.M. , 107 S.W .3d 772, 773 (Tex. App.—Texarkana 2003, no pet.); In re M.R. , 975 S.W .2d 51, 55 (Tex. App.

— S an Antonio 1998, pet. denied) ; Allred , 615 S.W .2d at 805). See I

n re M.R. , 243 S.W .3d 807, 818-19 (Te x . App.—For t Worth 2007, no pet.); Sylvia 3 2 M. v. D allas Cnt

y. W elfare Unit , 771 S.W .2d 198, 204 (Tex. App.—Dallas 1989, no wr it). L .C. was serving a 90-day jail sentenc e at the time of the hear ing fo r co m m i tting the 3 3 offe nse of dr iving while lice nse invalid. Acc ording to the indictment in that case , L .C. had assaulted her then-husband with an iron. 3 4 Acc ording to the evidenc e prese nted, the marihuana was found in a vehicle that L .C. was 3 5 driving and in which S.C. was a pa sseng er. 8offe nse of driving while license invalid; a 2011 judgme nt of conviction for the offe nse of cre dit-car d

abuse; a 2013 judgme nt of conviction for the offen s e o f theft; and a 2014 judgme nt of conviction for the offe nse of driving while l icense invalid. L .C. ac k nowledg ed in her testimony that she had “a lot” of convictions. There was also evidenc e tending to show that L .C. had committed other offe nses in addition to the ones fo r wh i ch she had been convicted. Captain Fa rra h Ramsey of the Giddings Police Depa

rtment testified that char g es we re curr ently pending ag ainst L .C. for possession of

cra ck coca ine that had been found in her ref rig era tor in 2013. Ramsey also testified that the police had been called to L .C.’s residenc e on mult iple occa sions for “alleg ed drug activity , multipl e assaults, and theft.” Also, in addition to the convictions involving assaults of her then-husband and

a peac e office r, there was other evidenc e tending to show that L .C. had a propensity for violence and

a l ac k o f self-c ontrol, dating back to her teenag e y ear s, including: three phy sical altercations wit h high schoo l cl assm ates; lighting a g irl’s hair on fire; five disciplinary write-ups while she was

s er v i n g time in prison; an acknowledg ment to a psy cholog ist that she was easily ang ere d and that her response s to ang er included throwing objects at people, punching walls, damag ing proper ty , and striking others; an incident in which L .C had threa tened to spank her oldest child using a metal belt with brads on it and during which, acc ording to one acc ount, L .C. “was s o an g ry that she was shaking and appea

red to be on the edg e of losing control”; an incident in which L .C. was fired from a job at Walmart for

g etting into a f

ight with a c o-worke r; and an incident i n which she ha d sent a
text messag e to a rela tive falsely claiming to have killed her own daug hter—whom she ha d called a “lil bitch” in the messa g e—bec ause the child was “ cry ing non- stop.”

9Other evidence tended to show that L .C. had placed S

. C

. in the care of individuals

who had a simil ar history of violent and criminal behavior , including L .C.’s sister, who had multipl e

co n v i ct i o ns for the offe nses of assault with bodily injury , unauthorized use of a motor vehicl e, possession of coca ine, assault-fa mily violence, cre dit-car d abuse, and assault. L .C. testified that she

was awa re of at least some of her sister’s criminal history at the time she had place d S.C. in her car e. Also, one of the assaults committed by L .C.’s sister was committed ag ainst their mother, during an incident in which, acc ording to L .C., their mother was “choking ” her sister and her sister was “doing what she had to do” to “def end herse lf.” L .C. further testified that she had, on a prior occa sion, place d S.C. in the car e of her mother, who, L .C. acknow ledg ed, had been found to have eng ag ed in abuse and neg lect of her own children and had been to prison on more than one occa sion, including once f or assa ulting her boy friend. The evidenc e further tended to show that L .C. had a history of drug abuse. Acc ording
t o Dr. J ames Shinder, a psy cholog ist who had perf ormed a pare nting assessment on L .C., L .C. had acknow ledge d t o him that there was “a considera ble period of time when she was smoking

m ar i h u an a three to four times a day .” Additionally , L .C. had once tested positive for coca ine, althoug h she claimed that the positive test was mere ly the result of her handling cocai ne during a period of time w hen she was, by her ow n admission, a drug deale r. Dr. Shinder testified that L .C. inform ed h i m t h at she had sold drug s in order “to purcha se her own supply of marihuana .” L .C. claimed, howe ver, tha t she was no long er se lling drugs. Other people wit h whom L .C. associated and who wer e in the prese nce of her children also had a history of drug use, including her sister and

a friend named J ason Charles J ames, who was arr ested at L .C.’s residenc e—while one of her other children w as pre sent—for the offe nse of c ocaine possession.

10Viewing the above and other evidenc e in t h e light most favor able to the jury ’s

finding , we conclude that the evidenc e is leg ally sufficie nt to support a finding that L .C.’s conduct endang ere d the phy sical and emotional well-be ing of her child. I n addition to her well-doc umented history of criminal conduct, the evidenc e also tended to show that L .C. was violent, had a history of both selling and using drug s, and had place d her children in t h e car e of individuals with simil ar histor i es o f violence and criminal behavior

. All of this conduct, the jury could have rea sonably inferr ed, subjected S.C. to a life of uncer tainty and instabilit y that jeopar dized the child’s well-be ing, and the jury

was fr ee to disbelieve L .C.’s claims that she wa s no longe r eng ag ed in this conduct. Having conclude d that at least one of the statutory g round s for termination is supported by leg ally sufficie nt evidenc e, we need not addre ss the sufficie ncy of the evidenc e rela ted to the other a lleg ed g rounds for te rmination. We overrule L .C.’s second a nd fourth issues. 3 6

Best int erest When deciding the best-i n t erest issue, we consider the well-e stablished Holley v. Adams fac tors, wh i ch include the child’s wishes, t he child’s emotional and phy sical needs now and in the fut u re , emotional or phy sical dang er to the child now and in the future, the pare nting abilities of t he party seeking custody , prog rams av ai l ab l e t o help t hat party , plans for the child by the par ty seeking custody , the s tability of t he proposed place ment, the parent’s conduct indicating that the pare nt-child rela tionship is improper, and any excuses for the pare nt’s conduct. The 3 7 Depa rtment need not prove all of the Holley fac tors as a “condition prec edent” to te rmination, and

See Tex. R. App. P . 47.1; Spurck , 396 S.W .3d at 221. 3 6 See 544 S.W .2d 367, 371-72 (Te x . 1976). 3 7 11the absenc e of some fac tors does not bar the fac tfinder from find i n g b y clea r and convincing evidenc e that termination is in a child’s best interest. The need for perma nence is the para

mount 3 8
consideration when d et ermini ng the child’s prese nt and future phy sical and emotional needs. 3 9
Moreove r, a pare nt’s statutorily offe nsive conduct is often intertwined with the best -i n t erest deter mination. 4 0

We beg in with the evidenc e of L .C.’s statutorily offensive conduct, summarized above. The jury cou l d h av e rationally inferr ed from this evidenc e that L .C. was a car eer criminal wi t h v i o l en t tendenc ies and a history of drug abuse and that it would not be in the best interest o f the child to be raised by such an individual, a bsent a showing that L .C. had turned he r life a round. The jury could have rea sonably inferr ed that no such showing was made. Dr. Shinder perf ormed a
p are nting assessment of L .C. in Aug ust 2014, approximately four months befor e the term i n at i o n h ea ri ng . A repor

t of the assessment was admitted into evidenc e. When asked if, based on that assessment, he had formed an opinion as to L .C.’s ability “to s afely pare nt a 4-y ear old,” Shinder testified, “At the time this evalua tion was completed, I stated that I had g rea t doubt about that.” Shinde r’ s as s essment was based, in part, on L .C.’s extensive and varie d criminal history

. He testified, “I t appea

rs, in looking at the differ ent char g es she has, that she is some wh at cr i minally diverse. She’s got fa m i l y v i o l en ce . She had assault. She had a theft. [There] was quit e a rang e.

C.H. , 89 S.W .3d at 27. 3 8
In re D.R.A. , 374 S.W .3d 528, 533 (Tex. App.—Houston [14t h Dist.] 2012, no pet.) (citing 3 9 Dupree v. Texas Dep’ t of Protective and Regulatory Servs. , 907 S.W .2d 81, 87 (Tex. App.—Dallas 1995, no writ)).

Horvatich v. Texas Dep ’t o f Protective & Regulatory Servs. , 78 S.W .3d 594, 601 4 0 (Tex. App.—Austin 2002, no pet.) (citing Holley , 544 S.W .2d at 3 7 2 ; L eal v. Texas Dep’ t of Protective & Regulatory Serv s. , 25 S.W .3d 315, 321 (Tex. App.—Austin 2000, no pet.)).

12Credit car d abuse, a ssault on a public serva nt. So there ’s a broad rang e of problematic behavior s.” What also conce rned Shinder was t h e fa ct that L .C. did not acc ept responsibility for her conduct.
He explained, “She rea liz es that at times she is easily ang ere d, she does overr eac t; but she believes that the problems she has are due more to the actions of other people and

. . . not to her own actions or wha tever .” Shinder also testified that L .C. lacke d considera ble knowledg e rela

ted to first aid, child safe ty , and child development. He testified, “[B]asically , I had to conclude that she didn’t have the pare nting knowledg e that would allow for her, in my opinion, to safe ly , independe ntly provide

car e for her child at that time.” He added that L .C. “ has had difficulty maintaining stable housing. There have been brief periods of time wher e she’s lived in h er car and differ ent temporar y

arr ang ements.” Although L .C. had indicated to Shinder that she believed herse lf to be a g ood pare nt, Shinder testified that he did not believe L .C.’s assessment of her pare nting skills was rea listi c when considere d in light of he r ac tual pare nting a biliti es. L .C. testified that her plan upon rele ase from i n ca rc er ati on was to obtain an
occupational driver’ s license so that she wou ld be able to drive, go back t o thera py , and complete all of the service s require d by the De p artment. I n the future, she explained, she wanted to obtain stable housing, become a para leg al, and eventua lly become an attorney , althoug h she was unable to provide many details reg arding how she planned to acc omplish these objectives, other than throug h
pray er a nd rely ing on a ssistance fr om friends a nd family

. T h e De p artment’s plan for S.C. was adoption by his curr ent foster family , with whom he had alre ady been place d for five months. J ana Hae vischer, the CPS case worke r who had

s u p er v i s ed this case , testified that the foster family wanted to adopt S.C., protec t him, and had

13indicated a “willing[ness] to sacr ifice” their own well-be ing in order to “better ” S.C.’s life and wellbeing

. Acc ording to Hae vischer, it was in S.C.’s best interest that L .C.’s pare ntal ri gh t s be terminated so that the a doption by the foster family could move for

war d. There was also evidenc e prese nted from which the jury could find that the foster
pare nts loved S.C. and that S.C. loved them in return. The foster fathe r testified that he and his wife both loved S.C. He explained, “I think the world of [S .C.]

. I love [S .C.] as much as I love my wife,

as much as I l o ve my son. I —I couldn’t love him any more if he was my biologica l son. He is a
g rea t child. He is loving. H e’s ve ry open. He ’s, y ou know, eve ry thing y ou could hope to ha ve in a child.” H e adde d that S.C. and his son “couldn’ t be more brothers if the y had the sa

me mother” and that they had “bonded quickly and they play ed toge ther hard and they just have been insepara ble since.” The foster fat h er also testified that S.C. called him “Da ddy .” Donna Cashion, the Court Appointed Special Advoca te (CASA) repr esent at ive who worke d on this case , simil arly testified that S.C. ref

ers to the foster fathe r as “daddy ,” the foster mother as “mommy ,” and his foster brother

as “brudde r.” Acc ording to Cashion, S.C. has expressed to her a desire to continue to live with the foster family

. Moreove r, L .C. acknow ledg ed in her testimony that S.C. is attache d to his foster f ather

. Viewing the above and other evidenc e in the light most favor able to the j u ry ’s finding , we conclude that the evidenc e is leg ally sufficie nt to prove that termin at i o n o f L .C.’s
pare ntal rig hts was in the best interest of the child. The jury could have rea sonably inferr ed that it would not be safe for S.C. to rema in in L .C.’s car e, that L .C. did not ha ve the ability to a dequate ly

car e for S.C., and that S.C.’s curr ent place ment would provide a more stable and perma nent environment for

him. W e over

rule L .C.’s first issue.

14Jury unan im ity
We next addre ss L .C.’s fifth issue, in which she asser ts that the district court abused its discretion when it included in the jury char g e an instruction tha t “ [a] ll ten jurors do not ha ve to
ag ree on the same g round or g rounds” for termination. We revie w complaints of jury -cha rg e err or

u n d er an abuse- of-discr etion standard. A t rial court abuses its discretion when it acts arbitrari l y 4 1

or unre asonably , “without ref ere nce to a

ny g uiding r ules and princ iples.” 4 2
The Texas Supreme C o u rt h as held that “the controlling question” in a pare ntaltermination case is “whe ther the pare n t- c h il d r e la tionship betwee n the [parent] and [her child] should be terminated, not what specific g round or g rounds

. . . the jury relied on to answe r aff irmatively the questions posed.” There fore , acc ording to the high court, broa d

- f o r m s u b mi s s io n o f th e termination 4 3
issue does not constitute an abuse of discretion. I n relianc e on that holding, this Court and others 4 4
have repe atedly held that the law does not require the jury to unanimously ag ree on the statutory
g round or g rounds for te rmination, and a trial court doe s not abuse its discretion in instructing the jury ac co rd i ng ly

. Unless and until the Texas Supreme Court revisits its ear lier holding—whic h 4 5

In re V.L.K. , 24 S.W .3d 338, 341 (Tex. 2000); Texas De p ’t of Human Servs. v. E.B. , 4 1 802 S.W .2d 647, 648-49 (Te x . 1990). Iliff v. Iliff , 339 S.W .3d 74, 78 (Tex. Crim. App. 2011); Downer v. Aquamarine Operators, 4 2 Inc. , 701 S.W .2d 238, 241-42 (Te x . 1985).

Boyd , 802 S.W .2d at 649. 4 3 Id

. 4 4 See, e.g. , Click v. T

ex as Dep’ t of Family & Protective Servs. , No. 03-10-00123- CV, 4 5 2010 Tex. App. L EXI S 8152, at *5-12 (Tex. App.—Austin Oct. 8, 2010, no pet.) (mem. op.); Thornton v. Texas Dep’ t of Protective & Regulatory Servs. , No. 03-01-00317- CV, 2002 Tex. App. L EXI S 1386, at *10 (Tex. App.—Austin Fe b. 22, 2002, pet. denie d); see also In re M.R.J.M

. , 280 S.W .3d 494, 511 (Tex. A pp.—For t Worth 2009, no pet.); In re L.C. , 145 S.W .3d 790, 794-95 15L .C. acknow ledg es it has not done—we must continue to follow this prec edent. We overr ule L .C.’s fifth issue.

P rior t erm ination decre e

I n addition to the statutory g rounds for termination discussed above, the district court al so submitt ed to the jury a g round for termination alleg ing that L .C. had previously had her
pare n t -child rela tionship terminated with respe ct to another child based on a finding that she had endang ere d th at ch i l d

. I n her third and six th issues, althoug h L .C. conce des that the evidenc e 4 6
prese nted on this g round was “unconte sted,” she asser ts that evidenc e of the prior termination decr ee should not have been “used at trial” and that the g round for termination based on the decr ee should not have be en submitted to the jury beca use the prior

decr ee violate d her c onstitut ional rig hts. 4 7

(Tex. App.—Texarkana

2004, no pet.); In re K.S. , 76 S.W .3d 36, 49 (Tex. App.—Amar illo 2002, n o pet.); In re M.C.M. , 57 S.W .3d 27, 31 n.2 (Tex. App.—Houston [1st Dist.] 2001, pet. denied ).

See Tex. Fam. Code § 161.001(1) (M). 4 6 Acc ording to L .C., the prior termination decr ee violated her constitutional rig hts beca use 4 7 she was not prese nt at the final hear ing at which her rig hts wer e terminated. Although there are some ci rc u m s t an ces in which the termination of pare ntal rig hts without the pare nt being prese nt at t h e final hear ing might am o u n t t o a d ue-pr ocess violation, see, e.g. , In re E.R. , 385 S.W .3d 552, 566 (Tex. 2012) (holding that “a complete failure of ser v i ce d ep ri v es a [parent] of due proce ss” in termination proce eding s), t he record does not ref lect that su ch ci rc umstances were prese nt during the 2007 proce eding s. Although the rea son why L .C. was absent from the final hear ing was disputed at trial (the Depa

rtment contende d that, at the time of the hear ing, L .C. had been rele ased from jail on a prior assault conviction, but L .C. claimed that she was still confine d on the date of the hear ing as a result of a parole violation r elating to a n ear lier offe nse), it wa s undisputed that L .C. ha d been serve d a copy of the termination petition by mail, was awa re of the termination proce eding s, and, in fac t, had filed a

pro se a nswer in opposition to the termination petition and had appea red pro se at a preliminary hear ing in those proce eding s (L

. C

. had been found not indige nt at the time, which meant that she was not entitled to the appointment of counse l during the t ermination proceeding s. See Tex. Fam. Code § 107.013(a) ). Also, L .C. admitted in her testimony that she had rec eived notice of the fina l hear ing. T he re cord doe s not refle ct that she soug ht a continuanc e of tha t hear ing. 16L .C.’s complaints amount to a collater al attack on the p r io r te r mi n a ti o n d e c r e e e n te red in 2007, which, it is undisputed, L .C. did not timely appea l or challeng e later via a bill of revie w. 4 8
I t is well settled that collater al attacks may be broug ht only ag ainst “void” judgme nts. A judgme nt 4 9
is void “whe n ‘the court rende ring judgme nt had no jurisdiction of the parties or prop er t y , no jurisdiction of the subject matter, no jurisdiction to enter the particula r judgme nt, or no capa city to act.’ ” There is nothing in the rec ord to sug g est that the 2007 termination decr ee was enter ed under 5 0
any circ umstances that c ould enable it to be collater ally attacke d in this proceeding . Acc ording ly ,

we cannot conclude that the district court abused its discre t i o n i n o v err uling L .C.’s objection to the inclusion in the jury char g e of the statutory g round for

termination based on tha t decr ee. We 5 1

overr ule L .C.’s third and six th issues.

See P NS Stores, Inc. v. R ivera , 379 S.W .3d 267, 270 n.1 (Tex. 2012) (“A bill of review 4 8 is an independe nt equitable proce eding broug ht by a party to a former action who seeks to set aside a judgme nt that is no longe r subject to challeng e by appea l. The residual four- y ear statute of limit ations applies to bills of review.” (interna l citations omit ted)).

See Rivera , 379 S.W .3d at 271; Moore v. B rown , 408 S.W .3d 423, 432-33 4 9 (Tex. App.—Austin 2013, pet. denied). Rivera , 379 S.W .3d at 271 (quoting Travelers Ins. Co. v. Joachim , 315 S.W .3d 860, 863 5 0 (Tex. 2010) (quoting Browning v. Prostok , 165 S.W .3d 336, 346 (Tex. 2005)). See In re S.A.P. , 169 S.W .3d 685, 693-94 (Tex. App.—Waco 2005, no pet.); see also R.F. 5 1 v. Texas Dep’ t of Family & Protective Servs ., 390 S.W .3d 63, 71-72 (Tex. App.—El Paso 2012, no pet.) (holding that prior judgme nts of conviction that are used to sup p o rt t er mination finding s cannot be collater ally attacke d in termination proce eding s). Cf

. E.R. , 385 S.W .3d at 566 (“A complete failure of s ervice deprive s a litigant of due proce ss and a trial court of persona l jurisdiction; the resulting judg ment is void and may be cha lleng ed at a

ny time.”). 17CONCLUSION We affir m the district court’s ter

mination decre e.

__________________________________________ Bob Pembe rton, J ustice
Be fore J ustices Pury ear , Pemberton, and B ourland Affir med Filed: June 8, 2015

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